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Construction

Friday, 10 October 2014
Executive Summary (One Minute Read)
Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd (WASCA) - insurance - property damage and business interruption insurance policy - construction of excess clause - appeal dismissed
Summaries With Link (Five Minute Read)
Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2014] WASCA 180
Court of Appeal of Western Australia
McLure P; Buss & Newnes JJA
Insurance - appellant insured operated mines - appellant entered insurance contract with respondent insurer, on behalf of itself and other underwriters for period 31/3/08 to 31/3/09 - respondent was lead insurer - contract provided property damage cover and business interruption cover for mines' operation - during period of insurance, appellant suffered business interruption loss from interruption in supply of gas mine caused by explosion at company's gas facilities - meaning of annual value in excess clause - primary judge rejected both parties' construction of clause and made no final determination on meaning of clause - even if primary judge had favoured either party's interpretation, he would not have allowed insurer's claim that insured was estopped from disputing its interpretation - held: primary judge correctly identified compelling reasons for rejecting insured's constructions of excess clause - insurer's declared value construction of excess clause upheld - primary judge ought to have concluded annual value of the site affected meant estimated gross profit and payroll of that mine specified as declared value in Placing Slip - appeal dismissed.
Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd

From "The Princess"
By Lord Alfred Tennyson

Come down, O maid, from yonder mountain height:
What pleasure lives in height (the shepherd sang),
In height and cold, the splendour of the hills?
But cease to move so near the Heavens, and cease
To glide a sunbeam by the blasted Pine,
To sit a star upon the sparkling spire;
And come, for Love is of the valley, come,
For Love is of the valley, come thou down
And find him; by the happy threshold, he,
Or hand in hand with Plenty in the maize,
Or red with spirted purple of the vats,
Or foxlike in the vine; nor cares to walk
With Death and Morning on the silver horns,
Nor wilt thou snare him in the white ravine,
Nor find him dropt upon the firths of ice,
That huddling slant in furrow-cloven falls
To roll the torrent out of dusky doors:
But follow; let the torrent dance thee down
To find him in the valley; let the wild
Lean-headed Eagles yelp alone, and leave
The monstrous ledges there to slope, and spill
Their thousand wreaths of dangling water-smoke
That like a broken purpose waste in air:
So waste not thou; but come; for all the vales
Await thee; azure pillars of the hearth
Arise to thee; the children call, and I
Thy shepherd pipe, and sweet is every sound,
Sweeter thy voice, but every sound is sweet;
Myriads of rivulets hurrying thro' the lawn,
The moan of doves is immemorial elms,
And murmuring of innumerable bees.

Lord Alfred Tennyson