Sachin Sharma v Insurance Australia Ltd trading as NRMA Insurance

Court of Appeal (NSW)|2017-10-31|Before: Macfarlan JA, Meagher JA

Introduction

Late in the evening of 12 June 2012, a rental property owned by the appellant (Mr Sharma) at Fields Road, Ingleburn was destroyed by a fire, which was deliberately started using a petroleum accelerant. At the time, the property was not tenanted. Mr Sharma made a claim under his Landlord Insurance Policy. Rejecting that claim, the respondent insurer (NRMA Insurance) maintained that the fire had been intentionally lit by a friend of Mr Sharma, Mr Sen, acting with Mr Sharma's knowledge and consent or, alternatively, having entered the property with Mr Sharma's permission. In doing so, it sought to invoke two exclusions in the policy.
The first was a general exclusion from cover for loss or damage arising from: any intentional act or omission by: - you, or - someone who acts with your consent
The second was a specific exclusion of loss or damage caused by fire: if the fire was started with the intention to cause damage by: - you, or - someone who enters your rental property or site with your consent (this does not include a tenant or their guest)
NRMA Insurance also alleged that Mr Sharma's claim was made fraudulently within Insurance Contracts Act 1984 (Cth), s 56(1). The fraudulent statements said to have been made were substantially denials of particulars of the allegation that the fire was deliberately lit by Mr Sen with Mr Sharma's consent. NRMA Insurance maintains that it is "conceivable" this Court could find that the two exclusions were not engaged but nevertheless uphold its denial of liability on the basis of some of those statements having been made.
The evidence on which the insurer's defence relied was wholly circumstantial. There was no direct evidence of Mr Sen having lit the fire, nor of Mr Sharma having agreed to his doing so. As will become apparent, that circumstantial evidence included the records of use of four mobile phones: the appellant's usual phone (Sharma Mobile); a prepaid phone registered in the name of one of the former tenants of the property (Phone X); a prepaid phone found at the scene of the fire (Scene Phone); and Mr Sen's usual phone (Mr Sen's Phone). The insurer's case was that the Scene Phone was operated by Mr Sen, while Phone X was operated by Mr Sharma.

Factual context

Mr Sharma operated a successful financial services business and had extensive business contacts in the Fijian-Indian community in Australia, as well as in India and Fiji. He was also a marriage celebrant. At the time of the fire, he was living with his wife and sister at a home in Ingleburn, which he owned.
Mr Sharma purchased the rental property in 2004 for around $290,000. It was a single storey brick-and-tile building with five bedrooms. At the time of the fire, the building was insured for $466,252 and its contents, for $60,637: Judgment [321]. That policy expired on 25 August 2012. In addition to fire damage to the building and its contents, the events insured included a default of the tenants in paying their rent during the term of a "rental agreement". The amount covered was four times the weekly rent. Furthermore, if the building was damaged by fire and a "rental agreement" was in force, the rent lost during a reasonable period for repair (up to 12 months) was also insured. For each of these covers, "rental agreement" was defined as a "current valid written agreement".
In August 2010, the property was rented for $600 per week to a Mr Mir, who sublet or shared it with others who contributed to the rent. In mid-April 2012, the then-current tenants stopped paying rent. Mr Sharma commenced a proceeding in the Consumer, Trader and Tenancy Tribunal to terminate his tenancy agreement. On 30 May 2012, that tribunal issued a warrant to the sheriff to evict any tenants and subtenants from the property. That warrant was executed on 31 May 2012, and Mr Sharma retook possession and had the locks at the property changed.
The occupants who were evicted included a Mr Oudin and a Mr Victorsen, as well as a Mr Markham. Previous tenants included a Mr Thompson, who ceased to live in the property more than six months before the fire. He subsequently lived at an address in Bradbury to which Mr Oudin and Mr Victorsen also moved after their eviction. Phone X was first registered in Mr Thompson's name with the Bradbury address and first used on 30 April 2012.
Mr Sen grew up in the same village in Fiji as Mr Sharma. He was a plumber and had visited the rental property with Mr Sharma on 8 June 2014 to shut off the hot water. In mid-June 2012, he was building an outdoor kitchen at the appellant's home in Ingleburn and living with his wife in Macquarie Fields, a neighbouring suburb of Ingleburn: Judgment [284(15)].
Mr Sen also had a girlfriend living in Fiji, whom he called "Huni". The outgoing call and SMS records for the Scene Phone, which were produced by Vodafone, showed that most of its outgoing communications were to a Fijian number attributed to that name. On day four of the hearing before the primary judge, Mr Sharma's counsel accepted that the Scene Phone was "probably" Mr Sen's phone, but not that Mr Sen was using it at the property when the fire was started: Judgment [279], [296]. Between 08:17 and 20:16 on 12 June 2012, the day of the fire, there were eight calls or messages to that number. These included a 13-minute voice call commencing at 19:33 and text messages sent at 20:00, 20:03 and 20:16. The voice call was attributed to Macquarie Fields, the suburb in which Mr Sen lived: Judgment [284(3)]. Before the primary judge, Mr Sharma conceded that Mr Sen was using the Scene Phone in addition to Mr Sen's Phone until 3 hours before the fire started.
The following communications between the Scene Phone, Phone X, Sharma Mobile and Mr Sen's Phone also occurred throughout the day of the fire (Judgment [284(1.1), (2.1), (5), (6), (9)-(11)]: Time Particulars 08.13 Scene Phone calls Sharma Mobile for 29 seconds 08:14 Phone X calls Scene Phone for 127 seconds 16:31 Phone X leaves voice mail on Scene Phone for 2 seconds 18:31 Scene Phone retrieves 16:31 voice mail 20:40 Mr Sen's Phone calls Sharma Mobile for 88 seconds 23:06 Phone X leaves voice mail on Scene Phone for 3 seconds 23:23 Scene Phone calls Phone X for 90 seconds

The voice call from the Scene Phone to Phone X at 23:23 was recorded as made from Ingleburn. At 23:27, the neighbours of the rental property called emergency services and reported the fire. Subsequent examination showed that a liquid hydrocarbon accelerant had been applied throughout the premises. When police arrived, the front and rear doors were closed and secure with no evidence of pre-fire forcible entry. The origin of the fire was likely towards the rear doorway. Also at the rear of the house, police found a single window, its glass fractured but mainly intact on the grass below its window frame. The appellant's evidence suggested that before the fire that window was able to be removed by hand from its frame without any need for forcible entry: Judgment [12].
At 23:53, Mr Sen's Phone was used to make a voice call to Huni from a location attributed to Macquarie Fields. That call lasted for just under five minutes. On the morning after the fire, the Scene Phone was found in the grass at the rear of the property sometime between about 8 and 9 am.

The reasoning of the primary judge

The primary judge proceeded on the orthodox basis that the respondent bore the onus of proving that at least one of the exclusions applied: see McLennan v Insurance Australia Ltd [2014] NSWCA 300; (2014) 286 FLR 453. (The insurer's challenge to the correctness of that decision by its notice of contention was abandoned.) His Honour also identified the relevant standard of proof as satisfaction on the balance of probabilities taking into account the following matters, required to be considered by Evidence Act 1995 (NSW), s 140(2): (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.
At Judgment [46] and [48], his Honour noted in relation to the proof of the exclusions: In order to satisfy its onus of proof, the defendant seeks to prove that Mr Sen was upon the Property with the intention of starting the fire to cause damage, that Mr Sen entered the Property at the time that he started the fire with the consent of the plaintiff and/or that when Mr Sen started the fire he was acting with the plaintiff's consent. Each of the first and last of these three elements require proof of a case of fraud and high level civil wrongdoing. Following from my construction of the specific Fire exclusion clause, the second element of consent does not require that the plaintiff consented to Mr Sen's entry for the purpose of Mr Sen starting the fire. … The parties agree that gravity of the civil wrong alleged in the defendant case requires that in order for the defendant to succeed in its onus of proof, its evidence must provide clear or cogent proof satisfying the balance of probabilities reflecting the conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct. A court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. Albeit Mr Sen is not a party to the proceedings, the element of the defendant's case that Mr Sen intentionally started the fire also requires that quality of proof, in my opinion: [Evidence Act, s 140(2)(c); Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 (Dixon J); Perpetual Trustees Victoria Limited v Cox [2014] NSWCA 328 at [105] (Leeming JA, Macfarlan and Emmett JJA agreeing)].
At Judgment [314], his Honour described the approach to be taken in a civil case where a fact to be proved involves fraud or other serious misconduct and the evidence is circumstantial by extracting a statement of the High Court (Dixon, Williams, Webb, Fullagar and Kitto JJ) in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 which includes: The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypothesis consistence with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture [authority referred to]. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.
That statement has been repeated and cited with approval on many occasions: see Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278; [2006] HCA 6 at [34], fn 50 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
Applying that statement, the primary judge ultimately found that Mr Sen deliberately started the fire and that in doing so he acted with Mr Sharma's agreement: Judgment [330], [341]-[343].
In particular, his Honour found that Mr Sen accidentally left the Scene Phone, which he had been using, in the backyard of the property when the fire was started: Judgment [311]. That conclusion was inferred from the following circumstances: 1. Mr Sen's familiarity with the layout of the property: Judgment [308]; 2. His lies to police and to an insurance investigator, initially as to his never having used the Scene Phone and subsequently as to his having lost it a year earlier, said to be consistent with a consciousness of guilt because he in fact continued to use that phone up to the time the fire started: Judgment [307]-[316]; 3. His use of the Scene Phone to call Huni from his home in Macquarie Fields three hours before the fire started: Judgment [306]; 4. The lack of any assertion by Mr Sen that he had somehow lost the phone after that call was made: Judgment [309]; 5. The call to Huni from Mr Sen's Phone attributed to Macquarie Fields at 23:53 on the night the fire started, said to be consistent with Mr Sen's having returned home from the property and called Huni using that phone because he no longer had access to the Scene Phone: Judgment [310]; and 6. The absence of any plausible explanation for Mr Sen being at the property at the time the fire was deliberately started other than he being the one who started it: Judgment [315].
His Honour inferred Mr Sharma's knowledge and consent from the following conclusions: 1. that it was unlikely Mr Thompson, the registered owner of Phone X, was in fact its user: Judgment [79]-[80], [202(1.2), (1.6)], [206]-[207]; 2. that, having heard Mr Oudin and Mr Victorsen give evidence, his Honour was satisfied that neither of them had anything to do with the deliberate lighting of the fire: Judgment [73]; 3. that the evidence as a whole went no further than raising the mere possibility that the fire was started by some other disgruntled tenant or by a stranger: Judgment [74] , [202(1)]; 4. that, on the probabilities, the analysis of the phone records of the Sharma Mobile and Phone X indicated that Mr Sharma was the user of Phone X: Judgment [202(2)], [204]-[210]; 5. that the prospect of a substantial insurance payout was sufficient motivation for the appellant to be involved in the deliberate starting of the fire: Judgment [319]-[326], [330]; and 6. that the appellant's failure to explain satisfactorily the deletion of five "common" contacts from the Sharma Mobile contact list between the end of day four and the beginning of day five of the hearing, together with other unsatisfactory aspects of the appellant's evidence in relation to the use of that mobile, indicated a consciousness of guilt: Judgment [328]-[329].
In drawing inferences from these circumstances as to the involvement of Mr Sen and Mr Sharma in the fire, the primary judge also took into account the good personal relationship between them and that on the morning before the fire the Scene Phone (accepted to have then been in Mr Sen's possession) had contacted Sharma Mobile (at 08:13 for 29 seconds) and then been contacted almost immediately by Phone X (at 08:14 for 127 seconds): Judgment [54], [283], [284(1.1)-(2.3)]. The user of the Scene Phone also had a conversation with the user of Phone X at the time the fire was started (23:23 for 90 seconds).

The issues in the appeal

The amended notice of appeal contains 18 grounds. Grounds 1 and 2 challenge his Honour's conclusions that Mr Sharma was involved in the destruction of the property so as to attract the operation of the pleaded exclusions. No submissions were directed specifically to these broadly drawn grounds, no doubt because there are more specific challenges to the primary judge's ultimate findings and the reasoning on which they were based.
Grounds 3 to 7 are directed to such findings, namely that Mr Sen was at all relevant times the user of the Scene Phone and lit the fire (grounds 3, 4 and 5) and that Mr Sharma was the user of Phone X and consented to Mr Sen's entry on the property and starting of the fire (grounds 4, 6 and 7).
Grounds 8 to 11, 13 and 14 focus on the primary judge's reasoning in support of those findings. They allege error in: finding that Mr Sharma had a motive for lighting the fire (grounds 8 and 9); failing to draw inferences favourable to the appellant in the face of the respondent's failure to call witness (ground 10); failing properly to apply the appropriate standard of proof having regard to the seriousness of the allegations made (ground 11); drawing inferences about Mr Sharma based on his credit which were not available on the evidence (ground 13); and using a finding that Mr Sharma was untruthful as to parts of his evidence to make findings as to his conduct that were not otherwise established (ground 14). A further argument in the appellant's written and oral submissions fixes upon several allegations in the respondent's case which were denied by Mr Sharma and either pleaded but not pressed or not made out by the respondent. The primary judge is said to have erred in failing to consider the likely truthfulness of those denials when assessing Mr Sharma's credibility.
Ground 12 is that the primary judge (in a ruling made on day five of the hearing) erred in allowing the respondent to amend its defence to include, as a particular of its allegation of fraudulent claim, that at the time of the fire the appellant was the user of Phone X.
Grounds 15 and 16 challenge his Honour's findings that Mr Sharma made false statements in support of his claim. With one or two exceptions, this challenge is directed to findings also made in support of the primary judge's conclusions as to the application of the two exclusions.
The primary judge's finding that the fire was started by a person who had entered the property with the appellant's consent is challenged by ground 17. Ground 18 is that his Honour erred in construing the provision excluding loss or damage caused in those circumstances (see [4] above).

The challenge to the amendment (ground 12)

Ground 12 may be dealt with immediately. On day one of the hearing, the respondent's counsel stated that its case was that Mr Sharma was the user of Phone X and Mr Sen, the user of the Scene Phone throughout the day on which the fire was started: Judgment [57]. At no stage during the hearing before the primary judge was it submitted that the respondent should not be permitted to make that case: Judgment [59]. When the amendment was proposed on day four, the appellant's counsel did not object to it or seek an adjournment on the basis of any prejudice if it was allowed. And the appellant accepted before this Court that it was not entitled to a new trial on this basis. In these circumstances, the primary judge did not err in allowing the amendment: see Pringle v Everingham [2006] NSWCA 195 at [49] (Hunt AJA, Mason P and Santow JA agreeing).

The challenges to the primary judge's reasoning

Having regard to the way in which the appellant's argument is put, it is convenient next to address the grounds directed to the primary judge's reasoning process by considering in turn the circumstances as to which the primary judge allegedly made erroneous findings or failed to give sufficient or any consideration in assessing the respondent's case. The appellant submits that, if his Honour "had properly considered motive, properly considered that there were signs of forced entry, reconsidered those many parts of the appellant's evidence where he was portrayed as untruthful but was likely to have been telling the truth, properly identified that the appellant's pleaded case was not established on almost all points, his Honour would not have been in a position to draw the inferences which he did."

Motive (grounds 8 and 9)

Ground 8 challenges a finding that the appellant's motive "was to make a windfall profit" on the basis that there was no evidence that he would make any profit or a windfall profit. Ground 9 is that his Honour erred in not finding that the appellant had no motive to arrange for the fire.
There is, as the respondent contends, a difference in meaning between a "windfall payment" and a windfall "gain" or "profit". The only windfall identified by the primary judge was Mr Sharma's "recovery for the loss under the Policy" (Judgment [326]), described later as a "substantial windfall payment" (Judgment [330]). In this context, the use of "windfall" as an adjective describes the suddenness and size of the likely insurance payout. That is the sense in which the appellant's own written submissions to the primary judge contended that, "apart from a simple windfall of receiving insurance monies to enable a new house to be built with replacement contents, there was absolutely no motive for [him] to commit a serious criminal offence". The primary judge did not make any finding that the appellant's motive was to make a "windfall profit" in the sense that the insurance proceeds would result in a net financial gain by reference to his position before, and expected position after, the fire. As no such finding was made, ground 8 must be rejected.
The submissions in support of ground 9 in effect challenge his Honour's finding (at Judgment [325], [330]) that the prospect of receiving the large insurance payout constituted a sufficient motive for the appellant to have arranged for Mr Sen to light the fire.
The primary judge addressed the subject of motive at Judgment [317]-[330]. In that analysis, his Honour referred to "a substantial windfall payment" being "in play" andnoted that neither party had submitted that recovery for the loss would not have provided a "substantial windfall": Judgment [321], [330]. At Judgment [318], he referred to a contest between the parties as to whether the insurance cover provided a sufficient incentive for Mr Sharma to have preferred that the house be destroyed. In that context, he observed that "the plaintiff would be compensated under the insurance for rental loss during the period of reconstruction up to a maximum of one year". Although the appellant's written submissions below had described the windfall payment from the insurer as including "the insured loss of rent", the context makes clear that the reference was only to coverage of the earlier rental default by the tenants.
The appellant makes three principal arguments in support of this ground. First, he submits that, contrary to the primary judge's observation, he would not have been entitled to compensation for any loss of rent while the property was being rebuilt or repaired because he did not have a "current valid written [rental] agreement" at the time of the fire. Secondly, he contends that Mr Chand was then "lined up to commence renting" the property at a rental of $600 per week, within a few weeks of the other tenants being evicted. Thirdly, he directs attention to his standing and financial health at the relevant time. The appellant's written submissions on motive conclude by correctly noting that "the absence of motive does not determine the outcome but … must be important in considering whether an [adverse] inference should be drawn against the Appellant".
In relation to the first of those arguments, the primary judge must be taken to have considered that any prospective payment to the appellant under the insurance would include compensation for up to 12 months rental loss during any period of rebuilding or repair: Judgment [318], [321]. Assuming a secure rental of $600 per week, compensation for twelve months would be about $30,000. As the appellant submits, the evidence did not permit that conclusion because the earlier lease had been terminated on 31 May 2012 and there was no written rental agreement with the prospective tenant, Mr Chand. For that reason, the clause providing cover against rent lost during the time taken to repair or rebuild would not have been engaged. Nor did the evidence justify a finding that the appellant had a mistaken belief that he was entitled to such rental cover. His cross-examination on this subject did not secure any clear concession to that effect.
Nevertheless, the appellant's written submissions to the primary judge accepted in terms that "a simple windfall of receiving insurance monies to enable a new house to be built with replacement contents" could constitute a possible motive to commit a serious offence. Those submissions also accepted that repairs had to be carried out to the property before it was capable of being re-let. Despite those concessions, the appellant submitted to the primary judge that, as the appellant had ample funds to meet the necessary repairs and he would receive rent from the property, "it is inconceivable that any rational person would commit a serious criminal offence and burn down his own property".
Rejecting that last submission, the primary judge pointed out that whether an individual is prepared to commit "a grave civil wrong comes down to the moral fibre of that individual": Judgment [324]. The primary judge's assessment of the appellant's "poor character in the way in which he gave evidence" supported the finding that "the insurance payout was sufficient motivation" for him to cause the building to be set alight: Judgment [326].
The primary judge correctly accepted that the appellant's lies did not prove the opposite of his untruthful evidence. But the manner in which the appellant gave evidence indicated his consciousness that the truth would not have assisted his denial of the inferences available on the evidence: Judgment [329]. His Honour concluded as follows (Judgment [330]): That there was a substantial windfall payment in play, in the absence of there being any other rational basis for Mr Sen to have started the fire, applying the … principles for finding adverse inferences, permits the objective evidence to persuade me of the [appellant's] motivation and his connivance with Mr Sen in Mr Sen starting the fire. In other words, that the [appellant] knowingly consented to Mr Sen starting the fire.
In this context, the question becomes whether the error as to Mr Sharma's entitlement to rental cover was material in the assessment of the circumstantial evidence as a whole. In my view, it was not. The error was not central to the primary judge's assessment that the appellant had a motive to cause the building to be set alight. There remained the windfall of receiving the insurance monies to enable a new house to be built and contents acquired. It was also common ground that repairs were required to restore the property to a condition suitable for rental. On the evidence of Mr Oudin, whom the primary judge regarded as a witness of truth, substantial repairs were needed for this purpose: Judgment [64], [70].
In any event, the circumstantial evidence, referred to in more detail below, independently supports the primary judge's finding that the appellant consented to the lighting of the fire on the property. Accepting the seriousness of such a finding and the "inherent unlikelihood" of a person engaging in such conduct, the force of the evidence supporting the finding is not diminished by the primary judge's error concerning coverage for loss of rental: cf Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).
The second argument proceeds from Mr Chand's evidence, which was said to be supportive of the appellant's case as to motive. That evidence was that, in about May 2012, Mr Chand had agreed in principle with Mr Sharma to rent the property for around $600 per week commencing three weeks after the existing tenants had been evicted. Mr Sharma described that arrangement as being "a viable agreement, but not concrete, unless and until the contract was signed". The fact of that arrangement was relied on as rebutting any suggestion that a motive for destroying the premises was that they were not otherwise likely to be tenanted in the short to medium term in their current unrepaired condition. The making of the arrangement was also said to be inconsistent with the appellant at that time having proposed to destroy the property.
The primary judge did not make a finding that Mr Chand and Mr Sharma had a firm understanding that Mr Chand would lease the property after the tenants moved out. But even if there were such an understanding, it is not inconsistent with Mr Sharma forming an intention some weeks later, after the tenants had been evicted, to act as he did in order to obtain the insurance payout. Nor is it inconsistent with the appellant deciding to pursue that course.
Finally, the appellant's submissions in relation to motive emphasise the evidence as to his standing in the Sydney Fijian-Indian community, successful financial planning business and "financially healthy" position. In making express findings to that effect, the primary judge noted that there was no debt outstanding on the appellant's rental property and the mortgage over his home was $290,000: Judgment [323]. His Honour took these matters into account when considering motive and assessing the likelihood that the appellant connived in or arranged the lighting of the fire. This third argument does not identify error. It follows that grounds 8 and 9 should be rejected.

Supply of petrol and forced entry (grounds 3 and 4)

The arguments made by the appellant with respect to each of these circumstances may be seen as arising within the subject matter of grounds 3 and 4. Each is said to involve a circumstance that the primary judge should have taken into account in deciding whether he could be satisfied on the balance of probabilities that the appellant agreed in Mr Sen lighting the fire.
The first relates to the respondent's pleaded allegation that the appellant had supplied the petrol used to start the fire. The primary judge regarded the evidence relied on in support of that allegation as so imprecise as to be of no assistance in the determination of the question whether both were involved in the starting of the fire: Judgment [51]. It is not suggested that conclusion involved any error or how the rejection of that allegation should have been taken into account in assessing the other circumstantial evidence.
The second circumstance concerns whether there were any signs of forced entry, the suggestion being that forced entry would not be consistent with the appellant having known of and consented to the starting of the fire.
The appellant submits that the primary judge should have found that there were signs of forced entry and erred in not doing so. Reference is made to the evidence of Mr Ritchie, a fire investigator retained by the respondent who attended the rental property 13 days after the fire. There was a question whether the rear bedroom window found by the police out of its frame and on the grass had been removed to access the property. The appellant had suggested in cross-examination that a rear bedroom window "could be manually removed from the window frame without requiring forcible entry": Judgment [12]. The primary judge summarised Mr Ritchie's comments in relation to that window at Judgment [14]: Mr Ritchie in his report recorded that he did not identify overt physical evidence attributable to forcible entry damage to the window or the window frame. He did not know whether it was in situ preceding the fire or not. He could not say, if it had been in situ within the frame, whether or not significant force was required to remove it.
In cross-examination, Mr Ritchie was asked, assuming that the window was in place at the time of the fire, whether it could have been blown out as opposed to having been removed manually. He agreed that the appearance of the window (fractured with small pieces of glass missing) made it unlikely that it had been blown out. The appellant's submission, relying on this evidence, was that the primary judge should have concluded the window had been "removed by persons unknown seeking access to the house", which was inconsistent with the respondent's case that the appellant organised and consented to the fire. That does not, however, follow. As the respondent points out, such removal would not necessarily constitute "forced entry", given the appellant's evidence that the window could be removed manually. And that means of access could have been used by Mr Sen who had visited the property with the appellant on 8 June 2012. Furthermore, as the respondent also emphasises, the critical issue was whether, in all the circumstances, it was more probable than not that Mr Sen was at the property at 23:23, when the Scene Phone was used to make a voice call to Phone X and described by the primary judge as "the time of the start of the fire": Judgment [311(f)]. His Honour considered that there was no reason for Mr Sen to be at the property at that time other than to start the fire: Judgment [315]. The appellant has not demonstrated any error in his Honour's approach.

Mr Sharma's credibility (grounds 13 and 14)

As appears above, the only grounds which refer to the appellant's credibility challenge the drawing of inferences as to his conduct by maintaining that those inferences were unavailable on the objective evidence (ground 13) and not justified by his untruthfulness in parts of his evidence (ground 14). The arguments addressing those grounds are considered below. But, in addition, the oral and written submissions for the appellant advance an argument that in effect seeks to bolster his credibility. What immediately follows considers that argument, which is not the subject of any specific ground of appeal.
The appellant refers to five matters in the evidence with respect to which the respondent sought to impugn his credibility: 1. that the appellant had sought to deflect responsibility from himself to the tenants as persons likely to have started the fire; 2. that he had dishonestly sought to exaggerate his contents claim; 3. that he had deliberately failed to maintain the relevant property; 4. that he had told Mr Oudin two or three times in 2011 and 2012 that he would not mind if the property was burned down because he could then claim insurance; and 5. that the appellant had purchased Optus prepaid vouchers for Phone X.
None of these matters relate to the deletion of contacts from the Sharma Mobile or Mr Sharma's use of that phone and knowledge of the identity of its contacts. The appellant says that each of these matters was relied on as a circumstance making it more probable that he was involved in the lighting of the fire; that none were made out; and that the likely truthfulness of his position with respect to each ought to have been weighed in the balance in assessing whether that inference should be drawn.
The difficulty for this argument is that the primary judge did not make a general finding as to the appellant's reliability and truthfulness and then decline to place any reliance or weight on his evidence unless it was supported by facts established objectively, contemporary materials or the apparent logic of the relevant events: see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] (Gleeson CJ, Gummow and Kirby JJ).
The primary judge's assessment of the appellant's credibility fixed on his evidence denying any knowledge of or involvement in the use of Phone X. He concluded that the appellant's evidence of this subject was consistent with a consciousness of guilt and therefore "not acceptable to rebut the positive inference supported by objective phone records that he was the single user of Sharma Mobile and Phone X": Judgment [277], [316], [328]. The analysis in support of that conclusion is at Judgment [218]-[277]. At Judgment [328], his Honour summarised the unsatisfactory aspects of that evidence: … his failure to satisfactorily explain destruction of evidence by deletion of contacts from his iPhone during the course of the hearing, his obfuscation by falsely attributing use of his phone [the Sharma phone] either completely or by exaggerated reference to access of his sister, wife, workers and overseas travelling companions, and his unacceptable, virtually complete refusal to admit facts, including his recollection of contacts which forensic analysis of his iPhone 5 found to have been recently contacted by him
As appears from this extract, in assessing the reliability of the appellant's evidence denying use of Phone X, the primary judge focused on his evidence with respect to the use of his own phone, Sharma Mobile, to call numbers also contacted by Phone X. That evidence was given in cross-examination on days four and five of the hearing. In the course of that evidence, it was discovered, and is not now controversial, that five of those common contacts and that of Mr Sen were deleted from Sharma Mobile overnight whilst it was in the appellant's custody. The primary judge's assessment of the truthfulness of the appellant's evidence was not based on the matters in (1)-(3) or (5) above.
As to the matter in (4), at Judgment [68]-[71], the primary judge accepted Mr Oudin's evidence that Mr Sharma had described the property to him as "paid off" and "heavily insured" so that, if it was "burnt down, [he] would get the insurance money". (This statement is to be contrasted with that alleged by the respondent as having been made by Mr Sharma to Mr Oudin that Mr Oudin "should burn the house down for the insurance money".) The primary judge's acceptance of Mr Oudin's evidence at Judgment [70] was in part based on that witness' willingness to concede that in making the statement Mr Sharma may have been joking. Thereafter, the primary judge only relied on this evidence as establishing that Mr Sharma believed that the property was not under-insured: Judgment [216], [317]. Otherwise, his Honour regarded it as "equivocal as to the question of whether or not at that time [the appellant] was contemplating arson". The limited reliance in fact placed on the making of the statement precludes the appellant's argument.
As formulated, grounds 13 and 14 contend that the inferences drawn and findings made by the primary judge as to the appellant's conduct were not available on the evidence. The argument as to the objective evidence supporting those inferences and findings is dealt with below. These grounds, as formulated and as argued, are not made out.

Failure to call witness (ground 10)

As the respondent observes, the ground as formulated does not identify which witnesses should have been called such that a Jones v Dunkel (1959) 101 CLR 298 inference ought to be drawn in relation to some matter to which their evidence was relevant.
The primary judge rejected the appellant's submission that Mr Sen was a witness whom the insurer would be expected to have called. The insurer led evidence that it had attempted to contact Mr Sen without success and submitted that he was an "unwilling witness" in its case: Judgment [333]. The primary judge accepted that submission and no argument is put challenging that conclusion, which was plainly available on the evidence: Judgment [336].
As to Mr Thompson, in relation to whom a similar submission was made, the primary judge found that he was "equally available to both parties": Judgment [202(1.7)]. That assessment was not challenged in written or oral argument. Nor is it apparent that any material inference could or should have been supported by reason of any failure of the respondent to call him. The appellant's submission concerning that failure concludes that the primary judge "should not have drawn an inference that the appellant had falsely registered a phone in Mr Thompson's name without hearing, firstly, from Mr Thompson". As is noted at [79] below, the primary judge made no such finding. Ground 10 should be rejected.

Failure to apply appropriate standard of proof (ground 11)

Under Evidence Act, s 140, the standard of proof is the balance of probabilities (subs (1)), to be applied having regard to the matters in subs (2). The primary judge properly directed himself as to the relevant standard (see [18]-[20] above). For reasons given below, his Honour is not shown to have erred in applying it. This ground should be rejected.

The challenge to the critical findings

Mr Cavanagh SC appearing for the appellant properly accepted in the course of argument that the critical issues for the primary judge were whether Mr Sen used the Scene Phone at 23:23 when at the property and whether Mr Sharma was the user of Phone X at that time: Now, obviously if the Court is satisfied that Mr Sen was standing in the backyard of the property watching it burn, talking to Mr Sharma, one doesn't need to know too much more about the case other than the fact that if two friends are talking and one is watching someone's house burning down, he might have been telling him about it.
The primary judge correctly proceeded on the basis that there was no direct evidence that Mr Sen lit the fire with Mr Sharma's consent: Judgment [3], [43]. The circumstantial evidence which the primary judge relied on is summarised at Judgment [311] (see [22]-[23] above). This Court is in as good a position as the primary judge was to assess that evidence in relation to this question: Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9.
In Palmer v Dolman [2005] NSWCA 361 at [41], Ipp JA (with the agreement of Tobias and Basten JJA) described the following principles as having "become well-established in determining, in a civil case, whether circumstantial evidence leads to an inference of fraud": (a) The jury [i.e. fact-finder] must consider "the weight which is to be given to the united force of all the circumstances put together" [Belhaven & Stenton Peerage (1875) 1 App Cas 278 at 279 (Lord Cairns), quoted with approval in Chamberlain v R (No 2) (1984) 153 CLR 521 at 535 (Gibbs CJ and Mason J)]. (b) The onus of proof is only to be applied at the final stage of the reasoning process: "[i]t is erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. To do so destroys the integrity of [a] circumstantial case" [Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 129 (Winneke P)]. (c) The inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful. (d) Where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved: Bradshaw.

Evidence that Mr Sen lit the fire (grounds 3-5)

The appellant contended that the objective evidence did not support a finding that Mr Sen was responsible for lighting the fire. Its written submission in relation to this question is short and as follows: Importantly, although the Respondent sought to ask the Court to draw inferences about the Appellant's failure to call evidence, there were critical pieces of evidence which were not adduced by the Respondent or referred to by the trial judge as follows: (i) firstly, although it is accepted that the Scene Phone was found at the scene in the backyard the next morning by the police and it is accepted that the phone is likely to have belonged to Mr Sen, it does not necessarily follow that that means that Mr Sen lit the fire. There is no evidence of who lit the fire. The only evidence that Mr Sen lit the fire was that a phone used by him was found at the scene the next morning (apparently at the same time as the Appellant was being interviewed). There is no evidence as to how it got there. The fact that it was found at the scene the next morning was not sufficient for the drawing of an inference that Mr Sen lit the fire. Mr Sen was not called but his statements were relied on by the Respondent. Although he denied any involvement and was not called, the Trial judge made a finding that he was not telling the truth and then inferred from the presence of the scene phone the next morning that Mr Sen lit the fire and called Phone X from the scene
Mr Sen lived at Macquarie Fields, a neighbouring suburb to Ingleburn. The phone records produced for Mr Sen's Phone and the Scene Phone, in most cases, attributed the calls made and messages sent by each phone to "approximate" locations: Judgment [76]. In oral argument, Mr Cavanagh accepted that the attribution of a call to a location is consistent with that call having been made at that location, although of itself it could not prove that conclusion.
Some of what follows has already been mentioned, but must be drawn together. The appellant conceded before the primary judge that the Scene Phone likely belonged to Mr Sen. Between 08:13 and 08:15 on 12 June 2012, the Scene Phone made a call to Sharma Mobile and then received a call from Phone X. The appellant accepted that Mr Sen was the user of the Scene Phone on each occasion. (It is likely, for reasons which appear below, that the appellant at least answered the call to Sharma Mobile, which lasted for 29 seconds.) Between 08:17 and 20:16, the Scene Phone was used to make calls and send messages to Mr Sen's girlfriend, Huni, and the primary judge found that Mr Sen made those communications: Judgment [284(3.1)]. The sending of the last such message to Huni, at 20:16, was attributed to Macquarie Fields, where Mr Sen lived.
At 23:23, the Scene Phone made a 90-second voice call to Phone X from a location attributed to Ingleburn, rather than Macquarie Fields. At 23:27, the fire was reported to emergency services. At 23:53, Mr Sen called Huni with his usual phone, and the making of that call was attributed to Macquarie Fields. At some time between 20:16 on the night of the fire and 09:00 the following morning, the Scene Phone was transported from Mr Sen's possession to the scene of the fire, where it was found.
On the evidence, the 23:23 call to Phone X must have been made by Mr Sen or some other person using the Scene Phone, probably from a place in or near Ingleburn. If the caller was not Mr Sen, it must have been someone who had received the Scene Phone from him with or without his consent. There is no plausible reason why Mr Sen would have given the phone away in circumstances where he was using it to communicate with Huni, and in no version of events subsequently given did he suggest that this had occurred. If the phone was taken from him, whoever did so (or another given the phone by him or her) would need to have had some reason both to make a 90-second call to Phone X, the phone from which Mr Sen had received a call at 08:15, and to be at or later go to the property, where he or she accidentally or intentionally left the Scene Phone. This scenario is even more implausible than that which has Mr Sen giving the phone away. Neither scenario is even a realistic possibility.
The overwhelming likelihood is that Mr Sen retained control of the Scene Phone, travelled to the fire scene and made the call to Phone X. He was familiar with the property, having visited it with Mr Sharma on 8 June 2012. It was quite possible for him to travel from Macquarie Fields to Ingleburn and to return home in the periods immediately before and after the fire was started and reported. That he made a phone call to Huni at 23:53 using Mr Sen's Phone apparently from Macquarie Fields is wholly consistent with his having returned home without the Scene Phone.
Although Mr Sen did not give oral evidence, the records of his interviews by the police (Detective Senior Constable Rogers) and later an investigator retained on behalf of the respondent (Mr O'Mullane) were admitted. Those records showed that Mr Sen initially denied owning the Scene Phone, and that he subsequently conceded ownership whilst maintaining that he had lost the phone about 1 year before the fire: Judgment [303]-[305]. None of that was truthful.
The only conclusion available on the probabilities was that found by the primary judge: that Mr Sen continued to use the Scene Phone on the evening of the fire until he accidentally left it at the rear of the property after having started the fire and spoken to Phone X. There was no other plausible explanation for him to be at the scene of the fire when it was started. This is not a case in which there are conflicting inferences of equal degrees of probability available in respect of Mr Sen's use of the Scene Phone and presence at the scene of the fire when it was started. Grounds 3, 4 and 5 must be rejected to the extent that they challenge the finding that Mr Sen was responsible for lighting the fire.

Evidence that Mr Sharma consented to the fire (grounds 4, 6 and 7)

The starting point is ground 6, which challenges the finding that the appellant was the user (or owner) of Phone X. As both parties accept, that finding was made on the basis of phone account records and the appellant's own evidence, mainly given in cross-examination directed to those records, which were of the outgoing use (phone calls and messages) of Sharma Mobile (between 5 January 2012 and 12 August 2012) and Phone X (between 30 April 2012 and 30 June 2012): Judgment [189]. Following a detailed analysis at Judgment [77]-[210], the primary judge concluded that they supported a "clear inference that Sharma Mobile and Phone X" were operated by the plaintiff. His Honour rejected the appellant's suggestion in argument that Phone X could have been operated by a former tenant or other person who was "disgruntled" with the appellant: Judgment [74], [202]. Five matters were significant in that analysis.
First, in the periods of recorded use, Sharma Mobile and Phone X were used to communicate with 12 common international contacts - in Fiji, New Zealand and India - as well as three common contacts in Australia (the two identified at Judgment [88] and one further number, Aus 2402). Six of the 15 common contacts were named in the contacts file of Sharma Mobile, including the Fijian contacts "Priya Teacher" and "Ashwini Navau": Judgment [88], [89]. Other contacts in that file included Mr Sen and "Rohini Mami", to whose Fijian number a voice call was made from Phone X on 18 May 2012: Judgment [226]. Phone X was also used to contact several Fijian numbers not called or messaged by Sharma Mobile: Judgment [197]. The contact lists at least indicate that the users of both phones had Sydney Fijian-Indian associations, and they are consistent with the appellant's active business and social associations.
Secondly, throughout the period that both phones were being operated, they were never used at the same time, and neither was used to contact the other: Judgment [190], [192]. This was the case notwithstanding that the recorded uses between 30 April and 13 June 2012 for Phone X exceed 3,500 and those for Sharma Mobile exceed 4,000, and the two phones were sometimes used alternately within short periods of time to communicate with the same common contact.
Thirdly, although Phone X was an Optus pre-paid phone first registered on 19 April 2012 in the name of Mr Thompson, the primary judge considered it "very unlikely that Mr Thompson was the user of Phone X": Judgment [82], [207]. His Honour noted that Mr Thompson was not a member of or an active participant in the Sydney Fijian-Indian community: Judgment [79]. The phone was first used on 30 April and then frequently up to 03:16 on 13 June 2012, within hours of the fire being started. After that, it was used to send two further messages to a Fijian contact (Fiji 6190) at 20:35 on 19 June and at 06:20 on 20 June 2012. As discussed below, the phone had been used to call that number before.
However, contrary to the assertion made by ground 7, his Honour did not find that the appellant "covertly registered [Phone X] in a false name for the purpose of communicating with Mr Sen". His findings were more limited, namely, that the appellant was the user of that phone and that its registration could have been achieved without Mr Thompson's knowledge: Judgment [202], [204]. He made no finding as to the appellant's purpose when acquiring the phone. Nor, as the respondent correctly submits, was it necessary for him to do so in reaching his final conclusions.
Fourthly, comparisons of the voice calls and messages from Phone X and Sharma Mobile to each of the 12 international common contacts revealed complementary patterns of use between the two phones. Those comparisons were extracted in annexures to the respondent's written submissions, and their significant features are described at Judgment [92]-[187]. In the case of six of the contacts (the subjects of Annexures E, F, G, H, I and K), the pattern involved successive periods in which one of the phones was used almost exclusively to communicate with each of the six contacts. In the case of the remaining contacts (the subjects of Annexures J, L, M, N, O and P), the pattern involved predominant use of Sharma Mobile to send text messages and intermittent use of Phone X to make a voice call, often for more than 30 seconds. Such patterns are consistent with common or coordinated use of the two phones.
More strikingly, on occasions both phones were used in almost instantaneous succession to make voice calls or send messages to the same common contact. For example, the following calls were made and messages sent to Fiji 0766 on 3 May 2012 (Annexure F): Time Phone Particulars 03:31 Sharma Mobile Message 03:32 Sharma Mobile Message 05:05 Sharma Mobile Message 05:07 Sharma Mobile Message 05:10 Phone X Call for 13 seconds 05:10 Phone X Call for 19 seconds 05:14 Sharma Mobile Message 05:55 Phone X Call for 255 seconds 06:06 Phone X Message 19:46 Phone X Message

Similar instances of such use occurred in relation to Priya Teacher on 23 May 2012 between 15:09 and 15:16 and on 3 June 2012 between 17:13 and 17:14 (Annexure O). And, on 11 June 2012, Phone X was used at 19:00 to make a 43-second call to a New Zealand contact (NZ 9666), and Sharma Mobile was used at 19:01 to make a 20-minute call to the same contact (Annexure P). This interchangeable use of the two phones to make calls and send messages to the same common contact, combined with the absence of simultaneous use, tends strongly towards the two phones having a common user. It is not easily or sensibly explained as mere coincidence.
The use of Phone X around the time of the fire is wholly consistent with its user in that period also being the user of Sharma Mobile. On 11 June, Phone X was predominantly used to communicate with four local contacts (Aus 2402, Aus 3452, Aus 4456 and Aus 8625), including by 13 consecutive messages to Aus 4456 between 07:29 and 08:20; a nine-second call and message to Aus 8625 at 13:31; and 53 consecutive messages to Aus 3452 between 17:38 and 18:57. It was next used to make a 43-second call at 19:00 to the common contact NZ 9666, the very number to which at 19:01 Sharma Mobile made a 20-minute call. Use of Phone X resumed at 19:31, and further messages were sent to Aus 2402, Aus 3452 and Aus 4456 through the night. On 12 June, messages were sent from Phone X to all four contacts, including at 22:06, 22:09, 22:20, 22:48 and 23:02 to Aus 3452. At 23:06, there was a three-second call from Phone X to the Scene Phone and a four-minute call to Aus 8625. A further message was sent to Aus 3452 at 03:16 on 13 June. Thereafter, as already noted, Phone X was only used twice, to message Fiji 6190. On 14 June, for the first time since 6 May (shortly after Phone X was first used), text messages were again being sent to Aus 2402 from Sharma Mobile.
The phone records while the appellant was travelling in India are also consistent with Sharma Mobile and Phone X having a common user. It was ultimately accepted before the primary judge that a pre-paid phone such as Phone X could be used to make international calls whilst overseas: Judgment [196]. This travel was after the fire. Phone X was only used on two occasions during this period to send messages to Fiji 6190. Phone X had been used to previously send messages to that number, including at 17:58 on 31 May, five minutes before making a 44-minute voice call to Priya Teacher. Sharma Mobile was also used to send messages to Priya Teacher while the appellant was in India (Annexure O).
Finally, reliance on the fact of common contacts and patterns of use as evidence of a common user necessarily depends on findings that there was one predominant user of Sharma Mobile and that the appellant was that user. Mr Sharma gave evidence that the people who had access to Sharma Mobile included those in his office (his assistant and possibly work-experience students); his wife and sister; and, when he was overseas, his girlfriend, a friend, members of travelling groups and his website designer: Judgment [219]. At the same time, he conceded that he "ran his business and personal life from the Sharma Mobile": Judgment [236]. And he ultimately accepted that, although he could not be "definitive", it was more likely than not that he did use the phone to message Ashwini Navau between 30 April and 3 May and between 8 July and 12 August 2012: see the relevant transcript extracted at Judgment [241]. There is no good reason why that would not be the position for other common contacts with a similar volume of use and throughout the period in which Sharma Mobile and Phone X were both being used. It follows that it was more likely than not that the appellant himself was the one using Sharma Mobile to call and message the common contacts.
In his written submissions challenging the findings as to his use of Phone X, the appellant submits that it was necessary for the primary judge to consider "much more than just similarities in these phone records". Reference is made to questions concerning motive, forced entry, Mr Sen's involvement and false registration of Phone X in Mr Thompson's name. The following matters are then identified as not having been referred to or properly considered: (c) the fact that there were many dissimilarities in phone use between Phone X and [Sharma Mobile]; (d) the fact that the Defendant relied on records for a limited period only; (e) the fact that Phone X was used to send two SMS whilst the Appellant was in India and travelling back to Australia (as established by his Passport) such that it could not have been the Appellant using Phone X as it was an Optus pre-paid and thus could not have been used to send messages from India; and (f) further the Appellant's evidence that this sister was also a regular user of this phone (hence his inability not to recognise some numbers when they were put to him by the Respondent) was likely to be correct. His sister had only come from Fiji two years earlier and was on a visa. She only had an Optus prepaid phone.
None of these matters address the commonality of contacts and patterns of use of the two phones relied on by the primary judge and referred to above. The primary judge rejected the appellant's submission as to "dissimilarities in phone use" at Judgment [202(2)]. The first matter identifies no error in that conclusion. As to the second matter, the period covered by the records includes the whole of the period of the use of Phone X and, in relation to Sharma Mobile, periods before and after that period. The number of uses in that time is substantial. It was clearly open to the primary judge to regard the records relating to Phone X and the Sharma Mobile as supporting the inference of common use by Mr Sharma. Why those records do not reasonably and definitely support the inference of common use by Mr Sharma is not apparent. As recorded at Judgment [196], the major premise of the third matter (that Phone X could not be used overseas) was conceded not to be correct, and it is not submitted that the primary judge erred in regarding the appellant as having made that concession. In relation to the last matter, see [84] above.
Furthermore, the primary judge's conclusion as to Mr Sharma's use of Phone X was not based solely on "similarities" in the phone records. The appellant denied that he was the user of Phone X: Judgment [211]. The primary judge did not accept the truthfulness of that denial, a conclusion based on his Honour's close assessment of the appellant's evidence in relation to the phone records, including the manner in which that evidence was given.
In cross-examination, which commenced on day four of the hearing, the appellant maintained that the only phone he used in 2012 was Sharma Mobile. He was then asked whether he could identify the "owners" or users of various telephone numbers, including ten of the common contacts and that for Mr Sen: Judgment [220], [233]. The primary judge summarised aspects of the appellant's evidence in response to that questioning at Judgment [233]-[245].
Overall, the appellant maintained that he had no recollection of the identity of each contact. He gave evidence that Sharma Mobile was used by him but able to be accessed by other people working in his office. In relation to its use in India, at one point he suggested that those users could have included an unidentified friend or his girlfriend at that time. When pressed as to possible users of that phone, he also said: … they could have entered India before me or after me, but we met at different places, because we took tours, and I had some of my business work - I had my business work to be done when I was in India as well, with the same company that I'd be dealing with, with the web designing. So I went and stayed actually with them. Those people have, in India, access to my phone because he was doing some stuff with my computer, phone, and things like that. So the web designer - I gave him my phone to work on and my computer to work on as well because --
One of the contacts about which the appellant was asked was Rohini Mami. Phone X made a 23-minute voice call to that number on 18 May 2014. The appellant's sister's phone had also been used to send messages to the number assigned to that contact. The appellant maintained that he could not identify the number or the name assigned to the contact. The primary judge did not accept those answers as truthful: Judgment [230]. The evidence showed that, between May 2013 and the time of the hearing, Sharma Mobile had been used to call or message that contact on 16 occasions, including several times in February, March and May 2016: Judgment [228]. One message in May 2013 included a "Happy Mother's Day" greeting: Judgment [229].
On day five, Mr Sharma's counsel tendered a document (marked as Exhibit 3) recording the identity of the contacts deleted from Sharma Mobile overnight between days four and five. That document includes an express admission that the number recorded as "Rohini Mami" in Sharma Mobile was the number used by the appellant's brother's wife, Roslyn Lapa. That admission stands in stark contrast with the following evidence given by the appellant at the commencement of his cross-examination: Q Who's Roslyn Lapa? A Roslyn? Q Who is Roslyn Lapa? A I have no recollection of that name. Q What's your sister-in-law's name? A My sister-in-law? Q You don't know the name of your sister-in-law? A I don't have a sister-in-law? Q Your brother's wife. A None of my brothers are married.
This evidence was maintained after the above concession was made by the appellant's counsel: Q I want to suggest to you that the person identifying themselves as Roslyn Lapa who resides in Fiji has access to that telephone and knows you. What do you say to that? A There's a lot of people who know me in Fiji. Q And that person is a member of your family, being your husband's brother. That is, sorry, you are her husband's brother. A No, none of my brothers are married. I don't have a sister-in-law.
The appellant's evidence as to the 29-second call from the Scene Phone to Sharma Mobile at 08:13 on the morning before the fire (immediately before a two-minute call from Phone X to the Scene Phone) was similarly unpersuasive. Although repeatedly claiming an inability to recall any details as to the use of Sharma Mobile and numbers it was used to message or call, the appellant had a positive "recollection" that he "never received any phone call" from the Scene Phone number. The relevant cross-examination is extracted at Judgment [287]. When pressed, Mr Sharma proffered an inconsistent explanation for the record of the call: that he had been receiving calls "from private numbers where people wouldn't say anything and things like that" and that this may have been such a call. As the primary judge observed, accepting that Scene Phone was being used by Mr Sen, it was "most unlikely that the two close friends … remained silent during the 29 seconds": Judgment [290].
Reference has already been made to the deletion of contacts from Sharma Mobile. The primary judge summarises the appellant's evidence concerning that matter at Judgment [249]-[269]. The cross-examination on that subject proceeded after the primary judge had issued a certificate to the appellant under Evidence Act, s 128: Judgment [253]. The appellant agreed that his wife and sister were the only two other people who had access to the phone overnight and that of the three of them he was the only one who understood the issues in the proceedings and the relevance of the material which had been deleted. And he denied that he had spoken to his wife and sister about the subject of his cross-examination. Notwithstanding this evidence, he maintained his denial of deleting the contacts. A substantial part of that cross-examination is extracted at Judgment [261]. It includes the following non-responsive answer to a question directed to whether there was any basis for speculating that his wife had deleted the contacts: … the thing is when I got the phone yesterday back from the Court there was no specific orders been made that I shouldn't use the phone in a particular way or anybody in my family shouldn't use the phone in a particular way. I was used to use the phone as a normal person uses it and delete whatever can do because the phone was in my custody and there was no orders been made for me to use in a particular way. So the phone could be used any way.
The primary judge described the appellant's evidence on this subject as "unreliable and probably untruthful": Judgment [277]. That somewhat restrained finding is not challenged. However, the primary judge made clear that it was not necessary to draw any adverse inference from the respondent's failure to comply with his duty as a witness to tell the whole truth in order to support the finding that he was the single user of Sharma Mobile and Phone X. That positive inference was supported by the objective phone records: Judgment [277].
The primary judge's overall assessment of the appellant's evidence remained that he deliberately refused to disclose his knowledge of the identity of the persons and mobile phone numbers commonly contacted using Sharma Mobile and Phone X: Judgment [222], [235]. That assessment took account of the way in which the appellant answered questions, which on occasions included periods of delay. The primary judge regarded those delays as providing the respondent with the opportunity to satisfy himself as to the purpose of the question so that it might be answered without conceding a connection between himself, Mr Sen and the lighting of the fire: Judgment [246], [264], [266(a)]. In weighing all of the evidence in support of the respondent insurer's circumstantial case, the primary judge took account of his assessment that the various unsatisfactory aspects of the appellant's evidence indicated a consciousness of guilt: Judgment [328]-[329].
The appellant's challenge to his Honour's conclusion that Mr Sen lit the fire with Mr Sharma's consent should be rejected. The evidence points clearly to Mr Sen having used the Scene Phone at the time and place of the fire to speak to Mr Sharma, who was using Phone X. The compelling inference in those circumstances is that the appellant consented to the lighting of the fire. His evidence and the manner in which it was given accorded with that conclusion. Grounds 4, 6 and 7 should be rejected.

Application of exclusions (grounds 1, 2, 17 and 18)

Given my conclusions above, grounds 1 and 2 also fail and the appeal must be dismissed. The remaining grounds may be dealt with briefly.
Grounds 17 and 18 raise two issues. The first is as to the construction of the more specific exclusion (see [4] above). The trial judge construed this exclusion as applying if the appellant consented to Mr Sen's entering the property, and irrespective of whether he consented to Mr Sen lighting the fire. The appellant submits the provision should be construed as requiring the insured's consent "not just to the entry onto the property but to the conduct of the person who started the fire". I do not agree. The ordinary and natural meaning of the exclusion is clear. It applies if the fire was started with the intention of causing damage and by someone who entered the property with the insured's (at least express) consent. The remaining question raised by ground 17 is whether the primary judge erred in finding that Mr Sen was on the property with the appellant's consent. Such a finding inevitably follows from the primary judge's conclusion that the fire was started with the appellant's consent. Both of these grounds should be rejected.

Defence of fraudulent claim (grounds 15 and 16)

Grounds 15 and 16 challenge the primary judge's finding that the statements made to the insurer's investigator in support of the claim were knowingly false. Those statements included the appellant denying the fire had been started with his consent: Judgment [349]. The appellant cannot and does not make any argument in support of these grounds if the primary judge's conclusion that the fire was lit with his connivance is upheld. That makes it unnecessary to consider the insurer's argument that this defence might have succeeded even if the trial judge's principal findings were set aside.

Conclusion

The appeal should be dismissed with costs.
SACKVILLE AJA: I agree with the orders proposed by Meagher JA and with his Honour's reasons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 December 2017

Solicitors: Marsdens Law Group (Appellant) William Roberts Lawyers (Respondent) File Number(s): 2017/66502 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: [2017] NSWDC 10 Date of Decision: 03 February 2017 Before: Montgomery DCJ File Number(s): 2014/277890

Headnote [This headnote is not to be read as part of the decision] After his rental property was destroyed by a deliberately lit fire, the appellant made a claim under a property insurance policy issued by the respondent insurer. The insurer maintained that a friend of the landlord started the fire with the landlord's knowledge and consent. It did so relying upon: (1) a general exclusion for loss or damage arising from any intentional act or omission by the landlord or someone acting with his consent; (2) a specific exclusion for loss or damage caused by a fire started with the intention to cause damage by the landlord or someone who enters the property with his consent (other than tenants or their guests); and (3) allegedly fraudulent statements in Mr Sharma's claim within Insurance Contracts Act 1984 (Cth), s 56(1). The wholly circumstantial evidence on which the insurer relied included records for the usual phone of the landlord's friend, a prepaid phone belonging to the friend and found at the scene, the landlord's usual phone and a prepaid phone called by that found at the scene at the time of the fire (alleged also to have been operated by the landlord). Accepting the insurer's case, the primary judge (Montgomery DCJ) concluded that the landlord's friend lit the fire and that the landlord consented to his doing so. The former conclusion relied on the friend's familiarity with the property, lies to investigators, phone records proving continued use of the phone found at the scene and the lack of any other plausible explanation for his presence at the scene. The latter involved dismissing a suggestion of disgruntled tenants or strangers having started the fire, analysis of the outgoing use of the landlord's usual phone and the prepaid phone called at the time of the fire, the prospect of a substantial insurance payout being sufficient motive, and the landlord's failure to explain satisfactorily the deletion of five contacts from his usual phone between days four and five of the hearing and while he was under cross-examination. Held (Meagher JA, Macfarlan JA and Sackville AJA agreeing), dismissing the appeal: i. The primary judge's error in quantifying a relatively small part of the expected insurance payout was not material to his assessment of the circumstantial evidence as a whole: [42], [43]. ii. Manual removal of a window at the back of the house did not necessarily constitute forced entry inconsistent with the landlord having consented to the fire: [51]. iii. The primary judge's assessment of the landlord's credibility focused on his evidence with respect to the use of his usual phone, rather than the matters relied on in effect to bolster his credibility: [57], [58]. iv. The primary judge is not shown to have erred in not drawing inferences adverse to the insurer and favourable to the landlord from any failure to call witnesses: [61], [62]. v. The only conclusion available on the probabilities was that the friend continued to use the phone found at the scene until he accidentally left it at the rear of the property, after having started the fire and made a call to the other prepaid phone: [74]. vi. The records for the landlord's usual phone and the phone called at the time of the fire reasonably and definitely support the inference of a common user being the landlord. The compelling inference in the circumstances, supported by various unsatisfactory aspects of the landlord's evidence indicating a consciousness of guilt, was that he consented to the lighting of the fire: [87], [97], [98]. Palmer v Dolman [2005] NSWCA 361 applied. vii. Given its ordinary and natural meaning, the specific exclusion applies if the fire is started with the intention of causing damage and by someone who entered the property with the insured's (at least express) consent: [100].

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