Bakerland v. Coleridge

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DMC/INS/02/20
Bakerland Pty Ltd v Coleridge
Australia: New South Wales Court of Appeal; Giles, Heydon JJA and Grove J; (2002) 12 ANZ Ins Cas 61-521;25 March 2002
INSURANCE — GENERAL INSURANCE — STORM DAMAGE — INDEMNITY — COLLAPSE OF PART OF BUILDING — WHETHER INSURED ENTITLED TO INDEMNITY VALUE OF BUILDING VIEWED ALONE AS DISTINCT FROM TOGETHER WITH THE LAND ON WHICH IT STOOD — WHETHER INSURED WORSE OFF AS RESULT OF THE COLLAPSE — WHETHER INSURED HAD PROVED COSTS OF REMOVAL OF DEBRIS 
Summary
Storm damage to a building was found not to have caused loss as the event resulted in a marked increase in a property’s value.

DMC Category Rating: Confirmed

Case note contributed by Melinda Keating, lawyer at Ebsworth & Ebsworth Lawyers, Sydney. Ebsworth & Ebsworth Lawyers are International Contributors for Australia.

Facts
Bakerland was a joint owner of Coogee Palace Aquarium. Bakerland’s insurance policy provided cover for loss and damage and the removal of debris in the event of destruction or damage to the property.

Coogee Palace Aquarium was constructed in the 1880s. Over the next century the building deteriorated to a derelict state, despite which a permanent conservation order was made in May 1982. During a fierce storm in June 1984, the central roof, which included a dome structure, collapsed and was destroyed.

Bakerland sought indemnity from the insurer for the property damage and the cost of removing the debris. The amount of A$130,000 was claimed as an agreed value or the amount necessary to provide indemnity against the loss. A further A$12,000 was claimed for removal of debris.

Judgment
The trial judge held that the contract of insurance was not for an agreed value. Further, he held that no loss was established on an indemnity value basis concerning the damage caused to the building, such that Bakerland could not recover the A$130,000 or any part of it. Bakerland could not recover for removal of debris because demolition and rubbish removal would have been required as part of any intended redevelopment.

On appeal, Giles JA (Heydon JA and Grove J concurring) recognised that the contract of insurance was one of indemnity under which the insured was to be fully indemnified, but not more than fully indemnified. The Court considered that the building could not be separated from the land and the policy did not look to the building alone. Indemnity to the insured meant that the value of the land and building before and after the dome’s collapse had to be assessed to see how much worse off the insured was due to the storm damage.

The court found that the value of the property had increased from A$260,000 before the storm, to A$2,000,000 after the storm. The demolition of the dome meant that the heritage listing was likely to be removed which would ensure that redevelopment of the site could occur. On this basis, as the insured had benefited from the storm, the Court found no loss to indemnify.

However the Court, in rejecting the trial judge’s finding, considered that Bakerland was entitled to recover the costs of removal of the debris as this was a necessary step to ensure that the site was safe and secure.

Comments
This case is a reminder that, while a property may be insured against loss or damage arising from certain events, the insured party must have actually suffered a loss as a result of the event in order to recover under the policy. If an insured party is placed in a better position as a result of the event, it follows that the policy will not respond.
Interpretation

 

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