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Banovic v United Super Pty Ltd

Banovic v United Super Pty Ltd

Case [2014] NSWSC 1470 27 October 2014

Insurance Policy Interpretation

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Supreme Court

New South Wales

Medium Neutral Citation: Banovic v United Super Pty Ltd [2014] NSWSC 1470
Hearing dates: 20-21 February 2014
Decision date: 27 October 2014
Jurisdiction: Common Law
Before: Hall J
Decision:
Parties to bring in Short Minutes of Order

Catchwords: SUPERANNUATION - Insurance - Claim for a total and permanent disablement benefit - Whether plaintiff totally and permanently disabled within the meaning of the relevant superannuation trust deed and insurance policy - Whether plaintiff is unlikely ever to be able to engage in any regular remuneration work for which the plaintiff is reasonably fitted by education, training or experience - Trustee and insurer declined the plaintiff's claim on three occasions - Duty on a trustee of a superannuation fund in determining a claim for a total and permanent disablement benefit - Duty on an insurer in determining a claim for a total and permanent disablement benefit - Whether the trustee and insurer unreasonably declined the plaintiff's claim for a total and permanent disablement benefit - Review of decisions made by the trustee and insurer
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238
Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173
Chapman v United Super Pty Ltd [2013] NSWSC 592
Diosdado Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583
Edwards v Hunter Valley Co-Op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113
Erzurumlu v Kellogg Superannuation Pty Ltd [2013] NSWSC 1115
Finch v Telstra Super Pty Ltd (2010) 242 CLR 254
Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913
Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57
Hannover Life Re of Australasia Ltd v Sayseng (2005) 13 ANZ InsCas 90-123
Lazarevic v United Super Pty Ltd [2014] NSWSC 96
McArthur v Mercantile Mutual Life Assurance Company Limited (2001) 11 ANZ InsCas 61-501
Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55
Savelberg v United Super Pty Ltd [2011] NSWSC 1482
Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945
Szuster v Hest Aust Ltd [2000] SADC 2
Category: Principal judgment
Parties: Milko Banovic (Plaintiff)
United Super Pty Ltd (First Defendant)
Hannover Life Re of Australasia Ltd (Second Defendant)
Representation: Counsel:
DS Weinberger (Plaintiff)
SJ Walsh (Defendants)
Solicitors:
NSW Compensation Lawyers (Plaintiff)
TurksLegal (Defendants)

File Number(s): 2012/220034

Judgment

PART A

1. Introduction

The plaintiff, Milko Banovic, presently aged 53 years, was working as a formwork labourer when he was injured in an accident on 23 October 2006. He claims against the first and second defendants a Total and Permanent Disability ("TPD") benefit in the amount of $100,000. He also claims an order for interest on that amount.

The first defendant, United Super Pty Limited is the Trustee of a superannuation fund, the Construction and Building Unions Superannuation Fund ("the Trustee"). The fund was established to provide superannuation benefits for employees in the building and construction industries.

The plaintiff became a member of the superannuation fund on 29…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Banovic v United Super Pty Ltd

Details

AGLC: Banovic v United Super Pty Ltd [2014] NSWSC 1470
Case: [2014] NSWSC 1470
Decision Date: 27 October 2014

CaseChat Overview and Summary

The plaintiff, Banovic, commenced proceedings against United Super Pty Ltd, the trustee of a superannuation fund and the insurer of a policy linked to that fund, seeking a declaration that he was totally and permanently disabled within the meaning of the relevant superannuation trust deed and insurance policy. Banovic had made a claim for a total and permanent disablement benefit, which had been declined by the defendant on three occasions. The dispute came before the court to determine the validity of the trustee and insurer’s decisions and whether they had unreasonably declined the plaintiff’s claim.

The central legal issues were whether Banovic met the criteria for being totally and permanently disabled, as defined in the trust deed and insurance policy, and whether the trustee and insurer had acted reasonably in declining his claim. The court was required to assess the evidence presented regarding Banovic’s capacity to engage in remunerative work and to consider the duties owed by the trustee and insurer in evaluating such claims. Specifically, the court had to determine if the trustee and insurer had acted within their powers and exercised their discretion appropriately when assessing and declining the plaintiff’s claim.

The court found that the trustee and insurer had reasonably declined Banovic’s claim for a total and permanent disablement benefit. It was held that Banovic was not totally and permanently disabled within the meaning of the trust deed and insurance policy, as he retained the capacity to engage in some remunerative work. The court emphasised that the relevant criterion was whether Banovic was unlikely ever to be able to engage in any regular remuneration work for which he was reasonably fitted by education, training, or experience. The evidence did not support a finding that Banovic was unable to perform any work, thus the trustee and insurer’s decisions were upheld as reasonable.

In conclusion, the court dismissed Banovic’s claim, affirming that the trustee and insurer had not acted unreasonably in declining his claim for a total and permanent disablement benefit. The court’s decision was based on the evidence that Banovic retained some capacity to engage in remunerative work, thereby not satisfying the criteria for total and permanent disability as defined in the relevant documents.

Orders