Vero Insurance Ltd v Australian Prestressing Services Pty Ltd [2013] NSWCA 181

Vero Insurance Ltd v Australian Prestressing Services Pty Ltd [2013] NSWCA 181

The respondents were entitled to indemnity only under the temporary protection extension of the insurance policy for costs incurred in providing temporary protection to the cofferdam wall as physical damage had occurred. The dewatering exclusion did not apply, as the works were not dewatering operations within its meaning. No implied term could arise to indemnify the respondents beyond express policy provisions. The recoverable amount was limited to $250,000 plus interest, subject to a $25,000 excess, as the weather event was not found to be a 'storm' or 'tempest' within the policy's meaning.

Jurisdiction
Australia
Judgment Date
21 June 2013
Procedural Posture
Appeal / Determination of Appeal From District Court Judgment, With Notice of Contention by Respondents
Outcome
Appeal allowed in part
Legal Topics
['construction of Insurance Contract' 'implied Terms in Insurance Contracts' 'insurance Policy Interpretation' 'dewatering Exclusion Clause' 'contract Works Insurance' 'temporary Protection Extensions']
['insurance Law' 'contract Law'] ['construction of Insurance Contract' 'implied Terms in Insurance Contracts' 'insurance Policy Interpretation' 'dewatering Exclusion Clause' 'contract Works Insurance' 'temporary Protection Extensions']

Case Brief

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Procedural Posture

Appeal / Determination of Appeal From District Court Judgment, With Notice of Contention by Respondents

Legal Issues

  1. 1 ['Whether the expenses incurred to protect the cofferdam were recoverable under the insurance policy, specifically under the temporary protection extension or general insuring clause;' "Whether the 'dewatering operations' exclusion applied to the claimed expenses;" 'Whether a term should be implied into the insurance contract indemnifying expenses incurred to avoid insured loss, damage or liability;' 'What limit of liability and excess should be applied to the recoverable amounts']

Ratio Decidendi

The respondents were entitled to indemnity only under the temporary protection extension of the insurance policy for costs incurred in providing temporary protection to the cofferdam wall as physical damage had occurred. The dewatering exclusion did not apply, as the works were not dewatering operations within its meaning. No implied term could arise to indemnify the respondents beyond express policy provisions. The recoverable amount was limited to $250,000 plus interest, subject to a $25,000 excess, as the weather event was not found to be a 'storm' or 'tempest' within the policy's meaning.

Court Disposition

Appeal allowed in part

Orders

  • ['Order 2 made on 9 March 2012 and Orders 1 and 2 made on 27 April 2012 by Gibson DCJ set aside.' 'Parties to calculate pre-judgment interest on $250,000 up to 27 April 2012 and prepare consent order for judgment for $250,000 plus that interest for the respondents against the appellant, to take effect on 27 April...