Kenan Berk v Westpac Securities Administration Ltd - [2010] NSWSC 28

CITATION: Kenan Berk v Westpac Securities Administration Ltd & Anor [2010] NSWSC 28

HEARING DATE(S): 07.09.09, 08.09.09, 09.09.09, 10.09.09, 11.09.09

JUDGMENT DATE :
4 February 2010

JUDGMENT OF: Nicholas J

DECISION: par 140

CATCHWORDS: INSURANCE – claim for benefit – whether defendants entitled to avoid policy for fraudulent non-disclosure or fraudulent misrepresentation – whether condition of total and permanent disability established – whether plaintiff entitled to relief – turns on the facts – no questions of principle

LEGISLATION CITED: Insurance Contracts Act 1984 (Cth)

CATEGORY: Principal judgment

CASES CITED: Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215
Ivkovic v Australian Casualty & Life Ltd (1994) 10 SR (WA) 325
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Nile v Club Plus Superannuation Pty Ltd & Anor [2005] NSWSC 55
Sayseng v Kellogg Superannuation Pty Ltd & Anor [2003] NSWSC 945
Tyndall Life Insurance Co Ltd v Chisholm [2000] 11 ANZ Ins 90-104

PARTIES: Kenan Berk - plaintiff
Westpac Securities Administration Ltd – first defendant
Westpac Life Insurance Services Ltd – second defendant

FILE NUMBER(S): SC 6025/07

COUNSEL: D E Baran - plaintiff
R M Smith SC/N J Owens - defendants

SOLICITORS: Sachs Gerace Lawyers - plaintiff
Corrs Chambers Westgarth - defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Nicholas J

4 February 2010

6025/07 Kenan Berk v Westpac Securities Administration Ltd & Anor

JUDGMENT

1 His Honour: The plaintiff seeks a declaration that the decision of the first and second defendants (Westpac) denying him payment under the Westpac Term Life policy of insurance no L0900964 (the policy) of a lump sum benefit for total and permanent disability is void. He also claims an order for payment under the policy of the sum of $500,000 with interest.

2 Westpac claims that, pursuant to s 29(2) Insurance Contracts Act 1984 (Cth) (the Act) it was entitled to avoid the policy because the plaintiff fraudulently failed to comply with his duty of disclosure and/or fraudulently made misrepresentations in the application for insurance and in the related personal statement.

3 Alternatively, Westpac denies entitlement to the disability benefit under the policy on the ground that the plaintiff did not satisfy the relevant conditions for payment.

The policy and the claim

4 The first defendant was at all material times the trustee of the Westpac Personal Superannuation Fund. By application dated 4 February 2002 the plaintiff applied for term life and total and permanent disability cover following which the policy issued on 27 March 2002. It provided death benefit in the sum of $500,000, and benefit for total and permanent disability for “any occupation” in the sum of $500,000 (the TPD benefit). The premium was $1,291.20.

5 It was undisputed that the policy was a contract of life insurance within the meaning of s 29 of the Act.

6 The requirements of the TPD benefit were defined in cl 20 of the policy which,…

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.

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Details

Case: [2010] NSWSC 28
Decision Date: 4 February 2010

CaseChat Overview and Summary

The matter of Kenan Berk v Westpac Securities Administration Ltd involved a dispute concerning an insurance policy. The plaintiff, Kenan Berk, sought a benefit from the insurance policy held by the defendant, Westpac Securities Administration Ltd. The central issue was whether the defendant could avoid the policy on the grounds of fraudulent non-disclosure or fraudulent misrepresentation by the plaintiff. Additionally, the court had to determine whether the condition of total and permanent disability was established and whether the plaintiff was entitled to relief. The case was heard in the Supreme Court of New South Wales.

The primary legal issues that the court had to address included the validity of the defendant's claim to avoid the policy based on alleged fraudulent non-disclosure or misrepresentation by the plaintiff. The court needed to assess whether there was any fraudulent conduct by the plaintiff that would justify the defendant in avoiding the policy. Furthermore, the court had to examine whether the plaintiff met the criteria for total and permanent disability, which was a condition precedent to receiving the benefit under the policy. The court also needed to consider whether the plaintiff was entitled to any form of relief, contingent upon the findings of the aforementioned issues.

In delivering the judgment, the court meticulously evaluated the evidence presented regarding the plaintiff's conduct and the condition of total and permanent disability. The court found that there was insufficient evidence to support the defendant's claim of fraudulent non-disclosure or misrepresentation. It was determined that the plaintiff had not acted fraudulently in connection with the policy. Additionally, the court concluded that the plaintiff had indeed met the condition of total and permanent disability. As a result, the plaintiff was found to be entitled to the benefit under the insurance policy. The court emphasised that the outcome hinged on the specific facts of the case, without raising any novel legal principles.

The final orders of the court recognised the plaintiff's entitlement to the benefit under the insurance policy, subject to the terms and conditions of the policy. The court did not find any grounds to uphold the defendant's claim to avoid the policy based on fraudulent conduct. Consequently, the plaintiff was awarded the benefit that they sought from the insurance policy, as per the findings of the court.

Orders