Bianchi v Boserio
[2001] QCA 462
•26 October 2001
SUPREME COURT OF QUEENSLAND
CITATION: Bianchi v Boserio [2001] QCA 462 PARTIES: VINCE BIANCHI
(plaintiff/appellant)
v
SHEREE ANN BOSERIO
(defendant/respondent)FILE NO/S: Appeal No 5281 of 2001
DC No 81 of 2000DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Cairns
DELIVERED ON: 26 October 2001 DELIVERED AT: Brisbane HEARING DATE: 15 October 2001 JUDGES: McMurdo P, Thomas JA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER: Appeal dismissed with costs CATCHWORDS: INSURANCE – LIFE INSURANCE – OTHER MATTERS – appeal against judgment dismissing an action against the respondent in which the appellant sought to recover monies paid to her by an insurer – where parties took out life insurance policies on each other’s life – where appellant signed application for payment and respondent shown as payee – whether there is sufficient evidence to support the trial judge’s conclusion that the appellant intended to make a gift of the proceeds of the policy – whether direction to pay an assignment of policy under s 200 Life Insurance Act 1995
Life Insurance Act 1995 (Cth), s 200
Calverley v Green (1984) 155 CLR 242, referred to
COUNSEL: J D Henry for the appellant
C J Ryall for the respondentSOLICITORS: MacDonnells Solicitors for the appellant
Farrellys Solicitors for the respondent
McMURDO P: I agree with the reasons for judgment of Cullinane J and with his proposed orders and with the further observations of Thomas JA.
THOMAS JA: I have the advantage of having read the reasons of Cullinane J with which I am in agreement.
The main problem arising in the present matter is whether there is sufficient evidence to support the learned trial judge’s conclusion that the appellant intended to make a gift of the proceeds of the insurance policy to the respondent.
There is no satisfactory direct evidence as to the appellant’s state of mind at material times. This is partly the result of the appellant claiming that he had no recollection of signing the relevant document that directed the proceeds of the policy into the respondent’s control. He said he had no recollection of any of the circumstances in which it was signed, although he accepted that he had signed exhibits 10 and 19, and the learned trial judge specifically found that it was probable that he also signed exhibit 11.
One of the principal submissions on behalf of the appellant was that there could be no gift if the appellant did not know that he had any rights to give away, and that the evidence does not show that he had such knowledge. I do not think that this is the correct way in which to approach the problem. It, in effect, asserts an ignorance of his rights, in reliance upon his own unsatisfactory evidence, some of which relies on absence of memory and other parts of which have not been accepted. Once it is accepted that he signed the document, there is no sufficient basis for thinking that he did not understand that this would pass the money into the control of the respondent.
The following extracts of evidence support the inference, in the learned trial judge’s phrase, that he “knew what he was doing.” The respondent’s evidence included the statement that the appellant “had full control of what he put on that form.” The appellant obviously had a choice whether to sign or not to sign. His evidence includes a statement that he knew that he had rights to the money before he saw his solicitors. There is also evidence of a number of subsequent acknowledgments by him of obtaining “loans” from the respondent after the money had been paid to her. These amount to admissions of the respondent’s entitlement to those monies, and of the effectiveness of his original gift.
The only promising answer to the above conclusions, so far as the appellant is concerned, would seem to have been the isolated statement in the evidence of the respondent that she had asked him to sign the document “… otherwise we won’t be getting any money.” If the evidence had stopped there the authorised transfer of the fund could have been regarded as a purely neutral act on the appellant’s part, enabling the money to be paid to her account before they decided to whom it would belong. But that statement was unequivocally withdrawn in her later evidence.
Although the evidence is fragmented, the better view of it seems to be that which the learned trial judge took. Although his Honour refrained from general credibility findings, it would seem that he accepted the respondent on particular points upon which a conflict arose. There is sufficient evidence to justify his finding “that the plaintiff knew what he was doing”, and that the appellant had made a gift to the respondent of the proceeds of the policy.
Although there are no express declarations of intention to benefit in the present case, the evidence is sufficient to allow the inference of such an intention to be drawn from the conduct of the parties.
Order
The appeal is dismissed with costs to be assessed.
CULLINANE J: The appellant failed in an action against the respondent in which he sought to recover certain monies paid to her by an insurer. He now appeals against the judgment dismissing his action.
The parties were the only witnesses at the trial of the action.
The appellant and the respondent lived together for many years in a de facto relationship which produced four children. They carried on a business of automotive spray painting in partnership on the Atherton Tableland from mid 80s until 1998 when they separated.
The business appears to have been one which frequently had financial difficulties. In May 1995, the parties took out life insurance policies on each other’s life. The policy incorporated what is described as a trauma recovery benefit.
In the following year, the respondent was diagnosed with a serious condition which led to surgery and a period of lengthy recuperation. This apparently was an event which gave an entitlement to the appellant to make a claim under the policy.
The agent of the insurer was contacted by the respondent and as a result of the discussion that occurred between them, an application was made for payment. This document was not in evidence and his Honour made no specific findings about its completion. However, the letter admitting the claim was sent by the insurer to the appellant as the holder of the policy. (See exhibit 7 at p. 60 of the record.)
In a letter dated 19 February 1997, the insurer advised that the payment of the claim had been approved and requested the completion of an application for payment in the form provided by the insurer. As well, certain documents were to be provided. The letter was addressed to the appellant and is exhibit 7.
In reply, the document which is exhibit 8 (p. 70 of the record) was sent. It was accompanied by the application for payment which is constituted by two pages which are Exhibits 9 and 10 (on pp. 71 and 72 of the record). It is common ground that exhibit 10 was signed by the appellant although he denied any knowledge of the circumstances in which he signed it. The payee is shown as the respondent and this part of the document was completed by her. Other parts of the document were, it would seem, completed later by an officer or agent of the insurer.
Payment of the monies was made by the insurer to the respondent’s bank account in accordance with exhibit 10.
The pleadings were far from satisfactory but it is fair to say that the real issue litigated was whether in receiving the monies, the respondent did so on behalf of the appellant or whether she was entitled to them beneficially as a gift. In addition to the deficiencies in the pleadings it can, I think, also be said that whilst the issue was litigated as just stated, there was some lack of focus upon the issue in the way in which the evidence was presented.
The central events concern the circumstances in which exhibit 10 came to be signed and what was intended in having the monies paid to the respondent. As well, there was evidence of events which post-dated the payment of the monies which the respondent relied upon in support of her claim that the monies were paid to her by way of gift.
It was common ground that the appellant signed exhibit 10, notwithstanding a denial on his part that he knew that the monies were to be paid into the respondent’s account, a denial which the learned trial judge rejected.
Shortly after the payment to the respondent of the monies, she advanced to the partnership, by way of three payments, some $44,000. This amount was treated in the financial records of the partnership as a debt by the partnership to the respondent. The parties separated in 1998 and shortly afterwards the partnership was dissolved. In a deed of dissolution it was agreed that the appellant would repay the respondent $44,000 at the rate of $500 per month.
The appellant made a few payments and then ceased. The respondent sued him in the Magistrates Court. The defence entered by the appellant is exhibit 17. The appellant did not raise in that defence any claim against the respondent in respect of any monies said to be owing by her to him.
The critical findings made by the learned trial judge appear at paragraph 13 of the reasons for judgment:
“In summary therefore I am satisfied that the plaintiff knew when he signed ex. 10 that he was authorising National Mutual to pay the proceeds of the claim to the defendant. By reason of his inconsistent conduct to which I have referred I am satisfied that he intended the defendant to have the permanent benefit of the money. In my view that is sufficient to make out the defendant’s assertion that the plaintiff made a gift of the claims money to her. Subject to the question of mistake which I will discuss shortly, I am satisfied that the reason why the plaintiff assigned the benefit of the claims money to the defendant was because she was the one who had in fact suffered from the major trauma which led to the claim under the policy being successful.”
Earlier, at paragraph 11 of the reasons, the learned trial judge after referring to the deed of dissolution and the proceedings in the Magistrates Court, said:
“In fact, the plaintiff’s conduct at the time the defendant made the advances to the panel-beating business, his acceptance of the treatment of such advances in the partnership tax returns, his understanding of the true reason behind clause 3 of the Deed of Dissolution of Partnership which he signed, in my view are all inconsistent with the belief that he was entitled to the insurance claim money paid by National Mutual and deposited into the bank account of the defendant. I therefore prefer the evidence of the defendant as to the circumstances in which the documents sent to National Mutual in February 1997 were signed. I am satisfied that the plaintiff knowingly signed the authority nominating the defendant as the payee who was to receive the money from National Mutual.”
The first ground of appeal argued was that there was no evidence upon which the learned trial judge could have found a dispositive intention on the part of the appellant. Associated with this was that the appeal should be allowed because on the respondent’s own account the appellant signed exhibit 10 believing that unless he did so, directing payment to the respondent, no monies would be paid by the insurer under the policy, something which would exclude a dispositive intention. In addition, the appellant advanced a ground of appeal based upon s 200 of the Life Insurance Act 1995.
The evidence in chief of the respondent as to the circumstances in which exhibit 10 came to be signed by the appellant was quite brief. It is helpful if this evidence and the evidence on the subject in cross-examination is set out:
“Now, in the time leading up to that day, had you had any conversations with Mr Bianchi about what was to be done with this money if it was paid out by the insurance company?--From the very beginning – from me saying to Vince, “Just imagine if I get paid for having all this trauma.” And – and not that it will happen because we don’t put faith in any insurance policy – we’d never had one before. And he was half excited for me.
Now what about on this occasion when you were filling out these forms, was there any discussion then about where the money was to go or what was to be done with it?-- On the 25th I – before Vince would sign that, he had to know what it was all about, as was the process in all our office work.
Yes. But did you talk to him about it? Do you recall what you said to him or he said to you? Can you -----?-- No – not then.
Do you remember, generally, what was being discussed, if anything?-- “Honey, you got to sign this document for me to be the payee otherwise we won’t be getting any money”, if that’s what – that’s what we intended to do.”
The appellant relies upon the respondent’s account in evidence in chief of what she said to the appellant as precluding a finding of a gift. The matter was taken up again in cross-examination at pp. 52 and 53:-
“HIS HONOUR: Look, did – did you believe, rightly or wrongly, did you believe at the time that because you were the one who actually suffered the traumatic incident that unless the insurance money was paid to you that nobody would get anything?—Definitely.
And from what you said before – did I understand you correctly – that you virtually said something like that to Vince, “Here, sign this. It’s got to be paid to me otherwise we won’t get anything.”?-- No, no, no.
I thought – I thought you said something like that earlier-----?-- No.
-----in your evidence-in-chief?-- I did say, “The paperwork has arrived and if – if we don’t complete it we won’t be getting anything. I won’t be,” – no I didn’t say “I” at that point it was-----
No, no, no. I realise that?-- -----“It’s up to you what you put here.”
Yes?-- Just fill it out and do what – with it – with it what we have to do.”
Yes?-- “You fill it out.”
…
You’re the one who – who wrote out that the money should be paid to you on the form – the application for payment form. You were the one who wrote that down?-- In the payee section?
Yes?-- Only after conferring with Vince.
Oh yes, yes?-- He was the policy owner-----
I realise that?-- -----he had full control of what we put on that form.
…
But you did believe that yourself, that unless it was paid to you nobody would get anything?-- No, at that point it could’ve been paid to anyone anywhere.
…
WITNESS: It wasn’t an instruction. I mean, I couldn’t instruct Vince to do anything that he didn’t want to do.
…
HIS HONOUR: Well you also told me a little – little while ago – just a few minutes ago – that you believed that unless you got the money nobody would get anything because you were the one who had suffered the trauma. Didn’t you tell me that a few minutes ago?-- No, I was saying that in reference to any – if Vince – if that money had of gone to the Estate Paint and Panel account or into Vince’s flexi account, my guess is that there would be nothing left because he’s a spendthrift, a gambler, punter. There would be nothing left.”
His Honour, after making the findings already set out, said at paragraph 15 of his reasons for judgment:
“There is evidence which might possibly (and I put it no higher than possibly) support a conclusion that at the time the claim was made both the parties believed that it was the defendant and the defendant only, who was entitled to receive the claims money from National Mutual because she was the one who had suffered the illness which gave rise to the claim.”
He concluded that it would not be inappropriate for the court to consider any question of mistake in view of the state of the pleadings.
The learned trial judge made no finding that the appellant signed exhibit 10, believing that unless he did so no monies would be paid by the insurer under the policy. I do not read what his Honour said at paragraph 15 as expressing any view of the matter but rather as identifying some evidence which might give rise to an issue for the purposes of deciding whether it would be appropriate to consider such issue in the light of the pleadings and the way in which the case had been conducted. To the extent that this passage might be thought to contain an expression of view by the learned trial judge about the matter it is of no assistance to the appellant. The appellant gave no evidence that he signed exhibit 10 under such a belief. The best evidence on the subject for the appellant (at p. 38 lines 5 to 10) is in my view equivocal. His Honour’s acceptance of the evidence of the respondent as to the circumstances in which the appellant signed exhibit 10 would seem to exclude the finding which the appellant suggests ought to have been made. The respondent denied that she had said anything like this and to the extent that she had said earlier in evidence anything which might have been to that affect her evidence was that she did not intend to convey that by her answers.
The findings in paragraph 13 must be taken as representing the only findings which the learned trial judge was prepared to make upon the issue of a gift. There is nothing to suggest that he misunderstood or failed to appreciate what considerations were relevant to this question. Whilst the evidence is by no means as clear or express as it might be, and indeed it can in some respects be described as tangential, the findings made were open on the respondent’s evidence taken as a whole. There was direct evidence upon which his Honour could make the findings that the appellant knew when he signed exhibit 10 that he was authorising the insurer to pay the proceeds to the respondent. His Honour’s conclusion that the appellant did this with a dispositive intention was largely based upon what occurred subsequently. This evidence was capable of being regarded as inconsistent with the claim now made by the appellant. Whilst this is not direct evidence of the intention of the parties, which must be ascertained by what was said and done at the time of the signing of exhibit 10, it is evidence of subsequent conduct capable of amounting to an admission against interest.[1] The finding that the reason for the gift to the respondent was because she was the person who suffered the major trauma, which led to the claim under the policy being successful, although not the subject of direct evidence, could in my view be reasonably inferred from the respondent’s evidence. Thus, the findings which his Honour made were in my view supported by the evidence and justify the conclusion that a gift was intended.
[1]See Calverley v Green (1984) 155 CLR 242 at 262 in the judgment of Mason and Brennan JJ (as they then were).
The final ground advanced was based upon s 200 of the Life Insurance Act 1995. This (so far as is relevant) provides as follows:
“(1)The rights of a person as owner of a policy may only be assigned at law under this section.
(2)An assignment is not effective at law unless the following requirements have been satisfied:
(a)the assignment must be by memorandum of transfer in accordance with, or substantially in accordance with, the form prescribed by the regulations;
(b)the memorandum must be endorsed on the policy document or on an annexure to the policy document that is referred to in the policy document or in another annexure to the policy document;
(c)the memorandum must be signed by the transferor and the transferee;
(d)the assignment must be registered in a register of assignments kept by the life company concerned;
(e)the date of registration must be inserted in the memorandum;
(f)the memorandum must be signed by the principal executive officer of the life company or by a person authorised by the principal executive officer to sign such memoranda.”
The learned trial judge concluded that this section had no application to the circumstances of the present case. The rationale for such a provision and its evident purpose are obvious. As the authors of Kelly and Ball “Principles of Insurance Law”[2] point out in discussing this section the only assignment of rights under a policy of life insurance possible is an assignment of the right to make a claim under the policy. In the present case, the claim had been made by the holder of the policy and admitted. The only effect of exhibit 10 was to direct how payment of the admitted claim was to be made.
[2]D. St.L. Kelly and M. Ball, Butterworths Australia 2001 at para 6.0090.
I think that the learned trial judge’s conclusions in relation to the section are correct and that it has no application to the circumstances of this case.
For the above reasons I would dismiss the appeal.
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