Newey v First Superannuation Pty Ltd [2009] NSWSC 1100

Newey v First Superannuation Pty Ltd [2009] NSWSC 1100

The plaintiff did not establish that Hanover or FPL was, as at 8 May 2008 or November 2008, of the opinion that he met the total and permanent disablement definition, or that they could not reasonably defer determination on the material then available. The medical and vocational material was conflicting and included ongoing uncertainty about hip surgery, possible spine surgery and future work capacity. It was therefore not unreasonable to withhold payment until Hanover later accepted the claim, so no interest was payable under s 57. Although the defendants succeeded, proportionality and the small amount in dispute justified only capped ordinary costs rather than indemnity costs.

Jurisdiction
Australia
Judgment Date
16 October 2009
Procedural Posture
Insurance Claim for Total and Permanent Disablement Benefit Under an Accident and Sickness Policy / Determination on the Papers of Remaining Issues of Interest Under S 57 Insurance Contracts Act 1984 (cth) and Costs After the Benefit Was Paid
Outcome
Judgment for the defendants; the plaintiff was not entitled to interest under s 57 and was ordered to pay capped ordinary costs for the determination on the papers and specified court appearances.
Legal Topics
['total and Permanent Disablement Benefit' 'interest on Insurance Claims' 'reasonableness of Insurer Deferring Determination' 'costs Following the Event' 'costs Cap' 'indemnity Costs']
['insurance' 'civil Procedure' 'costs'] ['total and Permanent Disablement Benefit' 'interest on Insurance Claims' 'reasonableness of Insurer Deferring Determination' 'costs Following the Event' 'costs Cap' 'indemnity Costs']

Case Brief

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Procedural Posture

Insurance Claim for Total and Permanent Disablement Benefit Under an Accident and Sickness Policy / Determination on the Papers of Remaining Issues of Interest Under S 57 Insurance Contracts Act 1984 (cth) and Costs After the Benefit Was Paid

Legal Issues

  1. 1 ['Whether Hanover was liable to pay the plaintiff the total and permanent disablement benefit earlier than 13 August 2009 so as to attract interest under s 57 of the Insurance Contracts Act 1984 (Cth).' 'Whether Hanover or FPL was, or ought reasonably to have been, of the opinion as at 8 May 2008 or November 2008 that the plaintiff met the total and permanent disablement definition.' "Whether it was unreasonable for Hanover and FPL to defer determination of the plaintiff's claim while further medical information, hip surgery and possible spine surgery remained relevant." 'What costs order should be made, including whether the defendants should receive indemnity costs or capped ordinary costs.']

Ratio Decidendi

The plaintiff did not establish that Hanover or FPL was, as at 8 May 2008 or November 2008, of the opinion that he met the total and permanent disablement definition, or that they could not reasonably defer determination on the material then available. The medical and vocational material was conflicting and included ongoing uncertainty about hip surgery, possible spine surgery and future work capacity. It was therefore not unreasonable to withhold payment until Hanover later accepted the claim, so no interest was payable under s 57. Although the defendants succeeded, proportionality and the small amount in dispute justified only capped ordinary costs rather than indemnity costs.

Court Disposition

Judgment for the defendants; the plaintiff was not entitled to interest under s 57 and was ordered to pay capped ordinary costs for the determination on the papers and specified court appearances.

Orders

  • ['There be judgment for the defendants.' "The plaintiff pay the defendants' costs of the determination on the papers and court appearances on 28 August 2009, 2 September 2009 and today on the ordinary basis but to a maximum amount of $5000."]