FEDERAL COURT OF AUSTRALIA

Oceanview Developments Pty Ltd trading as Darwin River Tavern & Darwin River Supermarket v Allianz Australia Insurance Ltd trading as Territory Insurance Office (No 2) [2020] FCA 935

ORDERS

THE COURT DECLARES THAT:

1.    The applicant is entitled, subject to the operation of the policy and any question of non-disclosure, to indemnity under Section 1 of Industrial Special Risks (ISR Mark IV) Insurance Policy number 79669400231SAC (Policy) for the damage to all Property Insured as described in clause 1.2 of the Policy other than property listed under the words “THIS POLICY EXCLUDES” on page 3 of the Schedule to the Policy (the Schedule to the Policy being part of exhibit A2 – Schedule) at the Situation defined on page 1 of the Schedule caused by fire on about 29 September 2018.

2.    The words “Orchid House” on page 3 of the Schedule do not refer to the shade sails shown on pp. 170 and 183 of exhibit P1 (exhibit PW-1 to the affidavit of Paul Winter of 2 September 2019).

THE COURT ORDERS THAT:

3.    The matter be referred to mediation by a mediator to be agreed by the parties or, failing agreement, appointed by the Court, which mediation is to be completed by 30 September 2020.

4.    On or before 7 October 2020, the parties file an agreed minute of order, or competing minutes of order, together with any submissions on the proposed orders and on the future conduct of the proceeding.

5.    Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1    On 19 June 2020, I published my reasons for judgment in Oceanview Developments Pty Ltd trading as Darwin River Tavern & Darwin River Supermarket v Allianz Australia Insurance Ltd trading as Territory Insurance Office [2020] FCA 852, which addressed separate issues of indemnity and the construction of an Industrial Special Risks policy issued by the respondent (Allianz) to the applicant (Oceanview), and which had been ordered to be heard first.

2    As those reasons make clear, I concluded that the questions posed to the Court should be answered in the manner contended for by Oceanview.

3    I then made the following order:

Within 14 days the parties file an agreed minute of order, or competing minutes of order, together with any submissions on the proposed orders and on the future conduct of the proceeding.

4    On 3 July 2020, the parties provided to the Court an agreed minute of order, which set out two agreed declarations and provided for the matter to be referred to mediation, following which the future conduct of the proceeding could then be reassessed. Having reviewed the parties’ agreed minute, I approve of the approach that has been adopted.

5    I am therefore prepared to make the following declarations:

(a)    The applicant is entitled, subject to the operation of the policy and any question of non-disclosure, to indemnity under Section 1 of Industrial Special Risks (ISR Mark IV) Insurance Policy number 79669400231SAC (Policy) for the damage to all Property Insured as described in clause 1.2 of the Policy other than property listed under the words “THIS POLICY EXCLUDES” on page 3 of the Schedule to the Policy (the Schedule to the Policy being part of exhibit A2 – Schedule) at the Situation defined on page 1 of the Schedule caused by fire on about 29 September 2018.

(b)    The words “Orchid House” on page 3 of the Schedule do not refer to the shade sails shown on pp. 170 and 183 of exhibit P1 (exhibit PW-1 to the affidavit of Paul Winter of 2 September 2019).

6    I am also prepared to make the following orders:

(a)    The matter be referred to mediation by a mediator to be agreed by the parties or, failing agreement, appointed by the Court, which mediation is to be completed by 30 September 2020.

(b)    On or before 7 October 2020, the parties file an agreed minute of order, or competing minutes of order, together with any submissions on the proposed orders and on the future conduct of the proceeding.

(c)    Liberty to apply.

Associate:

Dated:    6 July 2020