Trajkovski v Commonwealth Insurance Ltd (No. 2) [2020] NSWDC 694

Trajkovski v Commonwealth Insurance Ltd (No. 2) [2020] NSWDC 694

The plaintiff failed because he did not prove on the balance of probabilities that an insured theft occurred. The physical and expert evidence made it much less likely that an intruder entered through the roof void and more likely that the ceiling hole was not evidence of a covered theft. Together with concerns about the plaintiff's credibility and the objective probabilities, the Court was not persuaded that the probability of theft was greater than the probability that no theft occurred. The defendant's s 56 fraud defences were not made out to the required standard, but that did not assist the plaintiff because he had not established the insured event.

Jurisdiction
Australia
Judgment Date
13 November 2020
Procedural Posture
Civil Proceeding for Damages for Breach of a Home Contents Insurance Contract / Principal Judgment After Hearing
Outcome
Verdict and judgment for the defendant; plaintiff's claim dismissed.
Legal Topics
['home Contents Insurance Policy' 'alleged Theft of Jewellery From Insured Address' 'fraudulent Insurance Claims' 'section 56 of the Insurance Contracts Act 1984 (cth)' 'onus and Standard of Proof' 'expert Evidence About Ceiling Breach']
['insurance Law' 'contract Law' 'evidence' 'civil Procedure'] ['home Contents Insurance Policy' 'alleged Theft of Jewellery From Insured Address' 'fraudulent Insurance Claims' 'section 56 of the Insurance Contracts Act 1984 (cth)' 'onus and Standard of Proof' 'expert Evidence About Ceiling Breach']

Case Brief

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Procedural Posture

Civil Proceeding for Damages for Breach of a Home Contents Insurance Contract / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the alleged theft occurred in a manner covered by the policy of insurance' 'If theft was established, the extent of the coverage' 'Whether the plaintiff made the claim fraudulently in an attempt to induce the defendant to accept the claim and make a payment, described as a fraud on the event' 'Whether the plaintiff made a fraudulent claim, described as a fraud on the claim']

Ratio Decidendi

The plaintiff failed because he did not prove on the balance of probabilities that an insured theft occurred. The physical and expert evidence made it much less likely that an intruder entered through the roof void and more likely that the ceiling hole was not evidence of a covered theft. Together with concerns about the plaintiff's credibility and the objective probabilities, the Court was not persuaded that the probability of theft was greater than the probability that no theft occurred. The defendant's s 56 fraud defences were not made out to the required standard, but that did not assist the plaintiff because he had not established the insured event.

Court Disposition

Verdict and judgment for the defendant; plaintiff's claim dismissed.

Orders

  • ['There is Verdict and Judgment for the defendant.' "The plaintiff is to pay the defendant's costs as agreed or assessed." "Liberty to apply is granted on 14 days' notice for any application, by way of Notice of Motion supported by evidence not exceeding 5 pages, for variation of the costs order." 'Exhibits are to...