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Green v AMP Life Ltd

Green v AMP Life Ltd

Case [2005] NSWSC 370 6 May 2005

Misrepresentation

Breach of Contract

Compensatory Damages

Assessment of Damages

Rectification

Insurance Law

Contract Law

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Reported Decision:
(2005) 13 ANZ Insurance Cases 90-124

New South Wales

Supreme Court

CITATION:
Green v AMP Life [2005] NSWSC 370

HEARING DATE(S): 21-22/2/05; 24/2/05; 24/3/05

JUDGMENT DATE :

6 May 2005

JURISDICTION:
Equity

JUDGMENT OF:
Campbell J

DECISION:
Plaintiff's claim dismissed. Declaration of terms in which insurance policy has been amended.

CATCHWORDS:
INSURANCE - life insurance - whether a disability income protection policy not necessarily of more than three years duration is a life policy - CONTRACT - whether variation of contract agreed - whether defendant estopped from asserting variation to contract agreed - TRADE PRACTICES - misleading and deceptive conduct - alleged to arise from terms in which notification of acceptance for insurance given - DAMAGES - circumstances in which a person insured under a policy providing periodical payments during disability can recover a lump sum for loss of future benefits under the policy - INSURANCE - group insurance policy taken out by trustees - consideration of nature of legal rights of person insured under such a policy - DAMAGES - assessment of damages for personal injury - RECTIFICATION - when available

LEGISLATION CITED:
Industrial Relations Act 1996
Insurance Contracts Act 1984 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987
Life Insurance Act 1995 (Cth)
Trade Practices Act 1974 (Cth)

CASES CITED:
AFG Insurances Ltd v City of Brighton (1972) 126 CLR 655
AMP Financial Planning v Green [2004] NSWSC 1099; (2004) 51 ACSR 693
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Broadlands Properties Ltd v Guardian Assurance Co Ltd (1984) 3 ANZ Ins Cas 60-552
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 79 ALJR 308
Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329
Cullen v Trappel (1980) 146 CLR 1
DTR Nominees Proprietary Limited v Mona Homes Proprietary Limited & Anor (1978) 138 CLR 423
Farrow Mortgage Services Pty Ltd (in liquidation) v Slade and Nelson (1996) 38 NSWLR 636
Galaxidis v Galaxidis [2004] NSWCA 111
GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Judd v Suncorp Insurance & Finance (1987) 5 ANZ Ins Cas 60-832
Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638
NSW Medical Defence Union Ltd v Transport Industries Insurance Co Ltd (1986) 6 NSWLR 740
Russell Young Abalone Pty Ltd v Traders Prudent Insurance Co Ltd (1993) 7 ANZ Ins Cas 61-182
Todorovic v Waller (1981) 150 CLR 402
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

PARTIES:
Gary Sydney Green - Plaintiff/Cross-Defendant
AMP Life Limited - First Defendant/First Cross-Claimant
Roger Patterson - Second Defendant/Second Cross-Claimant
John Kelly - Third Defendant/Third Cross-Claimant
Kevin McLean - Fourth Defendant/Fourth Cross-Claimant

FILE NUMBER(S):
SC 3268/04

COUNSEL:
M J Heath - Plaintiff/Cross-Defendant
N Perram - Defendants/Cross-Claimants

SOLICITORS:
Malcolm J Wright - Plaintiff/Cross-Defendant
Mallesons Stephen Jaques - Defendants/Cross-Claimants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH…

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 Green v AMP Life Ltd

Details

AGLC: Green v AMP Life Ltd [2005] NSWSC 370
Case: [2005] NSWSC 370
Decision Date: 6 May 2005

CaseChat Overview and Summary

The parties in this case were Green, the plaintiff, and AMP Life Ltd, the defendant. The dispute centred around whether a disability income protection policy, which was not necessarily of more than three years duration, constituted a life policy. Additionally, the court had to determine whether the contract had been varied by agreement, whether the defendant was estopped from asserting such variation, and whether there had been misleading and deceptive conduct in relation to the terms of the notification of acceptance for insurance. The case was heard in the Supreme Court of New South Wales.

The central legal issues before the court were whether the disability income protection policy in question was a life policy, the validity of the contract variation, the applicability of estoppel, and the existence of misleading and deceptive conduct. Furthermore, the court had to consider the circumstances under which a person insured under a policy providing periodical payments during disability could recover a lump sum for the loss of future benefits under the policy. The nature of the legal rights of a person insured under a group insurance policy taken out by trustees was also examined. Finally, the court assessed the damages for personal injury and the availability of rectification.

The court held that the disability income protection policy was not a life policy, and thus, not subject to the statutory requirements for life insurance policies. The court found that there had been no variation of the contract by agreement. However, the defendant was estopped from asserting the variation due to the misleading and deceptive conduct in the terms of the notification of acceptance for insurance. The court determined that the plaintiff was entitled to recover a lump sum for the loss of future benefits under the policy, considering the nature of the periodical payments during disability. The court also examined the legal rights of a person insured under a group insurance policy taken out by trustees. The damages for personal injury were assessed, and the availability of rectification was considered.

The final orders of the court included a declaration that the disability income protection policy was not a life policy, a finding that the defendant was estopped from asserting the variation of the contract, and an order for the defendant to pay the plaintiff a lump sum for the loss of future benefits under the policy. The court also directed the parties to negotiate in good faith to determine the appropriate amount of damages for personal injury and the availability of rectification.

Orders