COMINO v MERCANTILE MUTUAL INSURANCE (AUST) LTD [1997] NSWCA 73
An arguable case existed that the appellants' claims for damage to their trucks were covered by the policy and not wholly excluded; therefore, the appeal should be allowed and leave to proceed against the insurer granted.
- Parties
- Appellant: Comino; Respondent: Mercantile Mutual Insurance (Aust) Ltd
- Jurisdiction
- Australia
- Judgment Date
- 27 February 1997
- Procedural Posture
- Appeal / Court of Appeal Decision on Application for Leave to Proceed Against Insurer
- Outcome
- appeal allowed
- Legal Topics
- Liability Insurance, Third Party Claims, Leave to Proceed Against Insurer, Statutory Charge
Case Brief
Summary, issues, holding and outcome
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Parties
Comino
Appellant
Mercantile Mutual Insurance (Aust) Ltd
Respondent
Procedural Posture
Appeal / Court of Appeal Decision on Application for Leave to Proceed Against Insurer
Legal Issues
- 1 Whether leave should be granted to the appellant to proceed against the insurer under s6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
- 2 Whether the policy exclusions prevented the appellants' claims
- 3 Construction of 'accident' and 'damage to property' under the insurance policy
Ratio Decidendi
An arguable case existed that the appellants' claims for damage to their trucks were covered by the policy and not wholly excluded; therefore, the appeal should be allowed and leave to proceed against the insurer granted.
Court Disposition
appeal allowed
Orders
- Leave granted for appellants to commence action against respondent to enforce statutory charge under insurance policy.
- Respondent to pay appellants' costs of appeal and proceedings before the Master.
Full Case Text
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