QBE Insurance (Australia) Limited v Tropical Reef Shipyard Pty Limited [2009] FCAFC 161

QBE Insurance (Australia) Limited v Tropical Reef Shipyard Pty Limited [2009] FCAFC 161

Leave to appeal was refused because the proposed question involved mixed fact and law on an assumed factual basis that was neither complete nor admitted; thus, a proper answer could not be given without further factual findings and resolution would not have disposed of the case or changed the conduct of the...

Source-derived case information.

Parties
Applicant: QBE Insurance (Australia) Limited; Respondent: Tropical Reef Shipyard Pty Limited
Jurisdiction
Australia
Judgment Date
12 November 2009
Procedural Posture
Interlocutory Application for Leave to Appeal / Appellate Application for Leave to Appeal From Interlocutory Decision
Outcome
Leave to appeal refused
Legal Topics
Business Interruption Insurance, Indemnity, Determination of Separate Questions, Leave to Appeal, Construction of Insurance Policy
Insurance Law Civil Procedure Business Interruption Insurance Indemnity Determination of Separate Questions Leave to Appeal Construction of Insurance Policy

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Parties

QBE Insurance (Australia) Limited

Applicant

Tropical Reef Shipyard Pty Limited

Respondent

Procedural Posture

Interlocutory Application for Leave to Appeal / Appellate Application for Leave to Appeal From Interlocutory Decision

Legal Issues

  1. 1 Whether leave to appeal should be granted where the decision would not result in substantial injustice supposing it wrong
  2. 2 Whether a mixed question of fact and law is suitable for separate determination prior to trial
  3. 3 Proper construction of business interruption insurance policies for calculation of loss of turnover

Ratio Decidendi

Leave to appeal was refused because the proposed question involved mixed fact and law on an assumed factual basis that was neither complete nor admitted; thus, a proper answer could not be given without further factual findings and resolution would not have disposed of the case or changed the conduct of the substantive trial. No substantial injustice would result to QBE if leave was not granted, even assuming the primary judge’s decision to be wrong.

Court Disposition

Leave to appeal refused

Orders

  • The motion for leave to appeal, notice of which is dated 26 October 2009, be dismissed.
  • The parties file and serve any written submission in respect of costs within seven (7) days, failing which each party pay its own costs of and in connection with the motion referred to in paragraph [1] above.