A man whose investment property burned down five years ago has been denied an insurance payout after two courts found his friend deliberately set the home alight.
Sachin Sharma's five-bedroom house at Ingleburn in Sydney's south-west was destroyed by fire on the night of June 12, 2012, two months before its insurance policy was due to expire.
No one was living at the Fields Road home at the time, though it was usually rented out for $600 a week.
Mr Sharma applied to have NRMA Insurance pay out his policy, worth $466,252 for the home and $60,637 for the contents.
But the insurer refused to pay, saying there was evidence the fire was deliberately lit by Mr Sharma's friend, Jai Sen, who had accidentally dropped his phone at the scene.
Mr Sen claimed he had lost the phone the year before, but records showed it had been used to call and message his girlfriend eight times on the day of the fire.
Police discovered the phone in the back yard of the house the next morning. It had been used to call Mr Sharma at 11.23pm, four minutes before neighbours noticed flames and called triple zero.
Mr Sharma sued NRMA Insurance in the NSW District Court in an attempt to get his claim paid out, but a judge sided with the insurer in February 2017.
During the trial, a man who previously lived at the house said Mr Sharma had joked about claiming insurance money if the house burned down.
Mr Sharma took the case to the Court of Appeal, arguing 18 grounds of appeal including that the judge had failed to properly apply the appropriate standard of proof.
In a judgment on Friday, Justices Robert Macfarlan, Anthony Meagher and Ronald Sackville agreed the appeal should be dismissed.
"The only conclusion available on the probabilities was that found by the primary judge: that Mr Sen continued to use the [phone] on the evening of the fire until he accidentally left it at the rear of the property after having started the fire," Justice Meagher said.
"There was no other plausible explanation for him to be at the scene of the fire when it was started."
Justice Meagher said there was a "compelling inference", given the phone call by Mr Sen moments before the fire, that Mr Sharma "consented to the lighting of the fire".
"His evidence and the manner in which it was given accorded with that conclusion," Justice Meagher said.
During the District Court hearing, Mr Sharma deleted five contacts from his phone after being questioned about people he had called.
In that court, Judge Robert Montgomery found Mr Sharma had an "unacceptable, virtually complete refusal to admit facts".
"I gained the impression that he was attempting to make up his evidence as he went along trying to avoid, as one would put it, "connecting the dots" so as to continue the obfuscation," Judge Montgomery said.
The appeal was dismissed with costs.
