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Beslic v MLC Ltd

Beslic v MLC Ltd

Case [2015] NSWSC 908 10 July 2015

Admissibility of Evidence

Expert Evidence

Evidence Law

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Supreme Court

New South Wales

Medium Neutral Citation: Beslic v MLC Ltd [2015] NSWSC 908
Hearing dates: 19 June 2015
Date of orders: 10 July 2015
Decision date: 10 July 2015
Jurisdiction: Equity Division
Before: Robb J
Decision:
The parties are requested to bring in short minutes of order

Catchwords: EVIDENCE – advance ruling as to admissibility pursuant to s 192A of the Evidence Act 1995 (NSW) – plaintiff/applicant seeks advance ruling in respect of affidavit and expert opinion evidence – held Court may decide whether it is appropriate to give the ruling before embarking upon hearing of application to sustain the ruling – test is one of appropriateness, falling within the discretion of the judge in the circumstances of the case – premature for the Court to rule on appropriateness – because first, leave given to second defendant to file further report of expert opinion could remedy shortcomings – second, plaintiff did not precisely and informatively identify the rulings sought
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Insurance Contracts Act 1984 (Cth)
Uniform Civil Procedure Rules 2005 (UCPR)
Cases Cited: Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953
Sydney Attractions Group Pty Ltd v Schulman [2012] NSWSC 951
Category: Consequential orders (other than Costs)
Parties: Damien Beslic (plaintiff/applicant)
MLC Ltd (first defendant/respondent)
AXA Financial Planning (second defendant)
Representation:
Counsel: E Romaniuk SC/ M A Kumar (plaintiff)

C Purdy (first defendant)
HJA Neal (second defendant)
Solicitors: Shine Lawyers (plaintiff)
Norton Rose Fulbright (first defendant)
Colin Biggers Paisley (second defendant)

File Number(s): 2011/205297
Publication restriction: None

Judgment

The Proceedings

In these proceedings, the plaintiff, Mr Damien Beslic, sues the first defendant, MLC Ltd, for breach of a policy of insurance dated 15 October 2004, under which the first defendant agreed to provide the plaintiff insurance cover, if he became totally disabled within the meaning of the policy. The plaintiff claims to be entitled to a benefit of $10,493.09 per month by reason of his becoming totally disabled.
The first defendant paid the benefit to the plaintiff between 11 January 2009 and 9 October 2010. It then ceased to pay the benefit.
By its defence in these proceedings, the first defendant has purported to avoid the policy pursuant to s 29(2) of the Insurance Contracts Act 1984 (Cth). That provision entitles an insurer to avoid a contract of life insurance, which the policy in the present case was, where the insured has fraudulently failed to comply with the insured’s duty of disclosure, or the insured has made a fraudulent misrepresentation to the insurer before the contract was entered into. The insurer may not avoid the contract if the insurer would have entered into the contract even if the insured had not failed to comply with the duty of disclosure, or had not made the misrepresentation before the contract was entered into.
The grounds upon which the first defendant claims that it was entitled to avoid the policy are set out in par 12 of its…

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 Beslic v MLC Ltd

Details

AGLC: Beslic v MLC Ltd [2015] NSWSC 908
Case: [2015] NSWSC 908
Decision Date: 10 July 2015

CaseChat Overview and Summary

The plaintiff sought an advance ruling on the admissibility of expert evidence that they intended to rely on in proceedings against the first and second defendants. The first defendant opposed the application, but the second defendant did not. The plaintiff sought an order under section 192A of the Evidence Act 1995 (NSW) that the evidence be admitted. The second defendant also sought leave to file a further expert report. The Court had to decide whether it was appropriate to make the ruling before the hearing of the application to sustain the ruling. The Court noted that the plaintiff had not precisely and informatively identified the rulings sought, and the second defendant had not filed a report. The Court found that it was premature to rule on the appropriateness of the ruling as the second defendant could still remedy the shortcomings of its expert evidence, and the plaintiff's application was not sufficiently specific.

The Court considered the discretion of the judge in determining the appropriateness of the ruling, which fell within the circumstances of the case. The Court found that the plaintiff's application did not meet the threshold for an advance ruling, as it was not sufficiently specific and the second defendant could still remedy the shortcomings of its expert evidence. The Court also noted that the second defendant had not filed a report, and it was premature to rule on the appropriateness of the ruling. The Court found that it was appropriate to give the ruling before embarking upon the hearing of the application to sustain the ruling, but the plaintiff's application did not meet the threshold for an advance ruling.

Orders