Qbe Insurance (International) Ltd v. Tin Tin Yat Pao (International) Ltd

HCA009932/1983

BETWEEN

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Coram: Hon. Mantell J.

Date of Hearing: 19 July 1984

Date of Delivery of Judgment: 19 July 1984

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JUDGMENT

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1. This is a claim for insurance premiums payable under two contracts of insurance alleged by the plaintiff as insurer to have been entered into with the defendant in December 1982. I say "alleged" because the issue in this case is as to whether or not those contracts of insurance were ever made. That that was the contest only became plain today because the defence as originally served was no more than a bare denial of the plaintiff's claim. I gave leave to amend so as to make clear the issue or issues. The defence now appearing is that although the defendant company through one of its directors, a Mr. Liu, entered into negotiations with the plaintiff or the plaintiff's agent for fire insurance in respect of their premises and indeed went so far as to make an offer or proposal, that offer was never accepted by delivery of the policy. The defence with regard to the second premium claimed, which relates to a policy covering consequential loss arising out of fire damage, is that no such offer was ever made by the defendant. In other words, they never sought cover in respect of consequential loss.

2. In the event, it has been a very one sided contest because the defendant has not had available any evidence to contradict the claim put forward through the mouth of the agent or broker, Mr. Leung, who told me that he had discussions with Mr. Liu, who he had known from previous dealings, from the summer of 1982 onwards and that in those discussions, he was asked to arrange for cover both in relation to fire damage and consequential loss. He calculated from figures given to him by Mr. Liu what the appropriate premiums would be and passed on the figures to the plaintiff company who, in the end, approved them, and eventually, on 31st December, two policies, one in relation to fire and one in relation to consequential loss, were handed by him to Mr. Liu. It is true, he says, that only one of the proposal forms was ever signed by Mr. Liu, that relating to the fire insurance. There never was, he concedes, any such document for the policy covering consequential loss: but, he says, that is not unusual and, of course, if I accept his evidence that the two policies were handed over on 31st December, there is some evidence from which I may infer that a request had been made to provide cover. But in the event, I need not have recourse to outside evidence of that sort. I take into account the fact, of which as much has been made as can be made by Miss Pinto in the circumstances that there is no document containing any offer or proposal for consequential loss. When Miss Pinto called Mr. Liu to deal with these matters, beyond telling me that he remembered that he was buying fire insurance for the defendant and that there had been some discussion in relation to consequential loss insurance, he was not able to say whether or not he asked for cover for consequential loss nor was he able to say whether or not the policies were ever handed to him. On those two vital matters, his recollection failed him. I believe that the less said about Mr. Liu's evidence the better. In the result, it leaves what Mr. Leung had to say entirely uncontradicted. I have no reason in any event to disbelieve what Mr. Leung told me. I accept it, I act upon it and I find that the plaintiff has proved its case.

3. Although Miss Pinto was in the position as I have said to her of attempting to make bricks without straw, she did it at the last manage to secure a small victory for her client because she noticed that the amounts originally claimed in the Statement of Claim paid no regard to a discount which the defendant was entitled to and, if I may say so, very properly, Mr. McLanachan having taken instructions conceded the point and sought and gained leave to amend the Statement of Claim so as to reduce the sum from the amounts in the written contracts. So in the result, in relation to paragraph 2 of the Statement of Claim, there will be judgment for the plaintiff in the sum of $66,327 and in relation to paragraph 3 of the Statement of Claim of $71,981 which gives a total $138,308. I award interest at 12½% per annum from 31st January 1983 up to the date of the judgment. Plaintiff is to have the costs of the action.

Representation:

John Mclanachan instructed by Deacons for Plaintiff.

Miss J. Pinto instructed by Kwan & Kwan for Defendant.