Max Hams & Anor v CGU Insurance Limited [2002] NSWSC 716

Max Hams & Anor v CGU Insurance Limited [2002] NSWSC 716

On the existing evidence, the defendant did not discharge its onus of proving that most of the plaintiffs' claimed property damage was caused by the excluded flood event; findings adverse to the plaintiffs could not be made by speculation. The plaintiffs succeeded in relation to the Homestead and shearers' quarters, while the existing adverse finding for the hangar stood, the claim for the woolshed failed, and the machinery shed was to be approached similarly to the hangar.

Jurisdiction
Australia
Judgment Date
15 August 2002
Procedural Posture
Insurance Property Damage Claim / Supplementary Judgment After Reserved Judgment and Further Submissions on Causation and Recoverable Damage
Outcome
Short minutes to be brought in; on the existing evidence the defendant had not discharged its onus except as specifically identified in the reasons.
Legal Topics
['causation' 'flood Exclusion' 'onus of Proof' 'property Damage' 'further Evidence']
['insurance Law' 'damages' 'civil Procedure'] ['causation' 'flood Exclusion' 'onus of Proof' 'property Damage' 'further Evidence']

Case Brief

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Procedural Posture

Insurance Property Damage Claim / Supplementary Judgment After Reserved Judgment and Further Submissions on Causation and Recoverable Damage

Legal Issues

  1. 1 ['Whether the defendant discharged its onus of proving that destruction, loss or damage to the plaintiffs\' property was caused by the excluded event of "Flood" as defined in the policy.' "Which parts of the plaintiffs' property damage were caused by the initial covered inundation and which were caused by later inundation involving waters from Treloar Creek or Scour Lake." 'Whether findings could be made on the existing evidence without reopening the evidence.']

Ratio Decidendi

On the existing evidence, the defendant did not discharge its onus of proving that most of the plaintiffs' claimed property damage was caused by the excluded flood event; findings adverse to the plaintiffs could not be made by speculation. The plaintiffs succeeded in relation to the Homestead and shearers' quarters, while the existing adverse finding for the hangar stood, the claim for the woolshed failed, and the machinery shed was to be approached similarly to the hangar.

Court Disposition

Short minutes to be brought in; on the existing evidence the defendant had not discharged its onus except as specifically identified in the reasons.

Orders

  • ['The parties are to consider their respective positions in light of the further reasons and bring in short minutes of order.']