Marketform Managing Agency Ltd v Amashaw Pty Ltd [2018] NSWCA 70

Marketform Managing Agency Ltd v Amashaw Pty Ltd [2018] NSWCA 70

The appeal and cross appeal were dismissed because, as at May 2012, a reasonable person in Amashaw's position would have been justified in treating the known contamination as historical and ordinary for a service station and not as a matter known to be relevant to Marketform's underwriting decision; the nuisance damage to Sydney Water occurred when Sydney Water became aware during the policy period of the fire or explosion risk in its sewer; the March 2013 release of large quantities of ULP 98 petrol from the failed check valve was a sudden, specific and identifiable event directly causing relevant pollution of the sewer even if older contaminants were also present; but the Later Measures...

Jurisdiction
Australia
Judgment Date
11 April 2018
Procedural Posture
Insurance Appeal and Cross Appeal / Appeal From Supreme Court of New South Wales, Equity Division – Commercial List, [2017] NSWSC 612
Outcome
Appeal dismissed; cross appeal dismissed.
Legal Topics
['insurance Contracts Act 1984 (cth) Duty of Disclosure' 'public Liability Insurance' 'pollution Liability Cover' 'private Nuisance' 'costs']
['insurance' 'torts' 'civil Procedure'] ['insurance Contracts Act 1984 (cth) Duty of Disclosure' 'public Liability Insurance' 'pollution Liability Cover' 'private Nuisance' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Insurance Appeal and Cross Appeal / Appeal From Supreme Court of New South Wales, Equity Division – Commercial List, [2017] NSWSC 612

Legal Issues

  1. 1 ['Whether Amashaw innocently breached its duty of disclosure so that Marketform could reduce its liability to nil under Insurance Contracts Act 1984 (Cth), s 28(3).' 'Whether the relevant Damage occurred in its entirety during the period of insurance and arose out of Pollution within cl 10 of the policy.' 'Whether the release of ULP 98 petrol from a failed check valve in March 2013 was a sudden, specific and identifiable event directly resulting in the relevant Pollution.' 'Whether the policy indemnity extended beyond the Short Term Measures to the Later Measures, including the interception trench.' 'Whether the primary judge erred in making no order as to costs of the proceedings.']

Ratio Decidendi

The appeal and cross appeal were dismissed because, as at May 2012, a reasonable person in Amashaw's position would have been justified in treating the known contamination as historical and ordinary for a service station and not as a matter known to be relevant to Marketform's underwriting decision; the nuisance damage to Sydney Water occurred when Sydney Water became aware during the policy period of the fire or explosion risk in its sewer; the March 2013 release of large quantities of ULP 98 petrol from the failed check valve was a sudden, specific and identifiable event directly causing relevant pollution of the sewer even if older contaminants were also present; but the Later Measures...

Court Disposition

Appeal dismissed; cross appeal dismissed.

Orders

  • ['Appeal dismissed.' 'Cross appeal dismissed.' "Appellant pay the respondent's costs of the appeal and the cross-appellant pay the cross-respondent's costs of the cross appeal."]