Kenneth Aldred Jacobs v Thomas John Charles MacPhillamy

KENNETH ALDRED JACOBS & ORS v THOMAS JOHN CHARLES MACPHILLAMY & ORS [2007] ACTSC 14 (7 MARCH 2007)

CONTRACTS – construction and interpretation – deed of dissolution of partnership – claim to be made on retiring partner’s life insurance policy – provision ambiguous and susceptible of more than one meaning – background and context aids to construction – circumstances of policy holder to meet definitions in policy before claim paid – making of claim for total and permanent disability discharged contractual obligation – retiring partner entitled to make subsequent terminal illness claim.

Maggbury Pty Ltd v Hafele Aust Pty Ltd (2002) 210 CLR 181
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Jones v Dunkel (1959) 101 CLR 298

Carter Bros v Renouf (1962) 111 CLR 140

No. SC 111 of  2003

Judge:              Gray J
Supreme Court of the ACT

Date:               7 March 2007

IN THE SUPREME COURT OF THE       )
  )          No. SC 111 of  2003
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:KENNETH ALDRED JACOBS

Firstnamed Plaintiff

AND:LIDODALE PTY LTD

ACN 002 801 256 as trustee of the

JACOBS FAMILY TRUST

Secondnamed Plaintiff

AND:MICHAEL JOHN ARCHINAL

Thirdnamed Plaintiff

AND:M AND J ARCHINAL PTY LTD

ACN 053 538 686 as trustee for the

M J ARCHINAL FAMILY TRUST

Fourthnamed Plaintiff

AND:THOMAS JOHN CHARLES MACPHILLAMY and

JANE PENELOPE ADAMSON as executors of the ESTATE OF THE LATE DAVID RICHARD THYNE ADAMSON

Firstnamed Defendants

AND:AJ PTY LTD

ACN 062 075 745 as trustee of the

D R T ADAMSON FAMILY TRUST

Secondnamed Defendant

ORDER

Judge:  Gray J
Date:  7 March 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The plaintiffs’ claim be dismissed with costs.

The Parties and the Claim

1. Kenneth Aldred Jacobs (Kenneth Jacobs), the firstnamed plaintiff, and Michael John Archinal (Michael Archinal), the thirdnamed plaintiff, claim to be entitled to shares in the proceeds of a claim made by their former and now deceased partner, David Richard Thyne Adamson (David Adamson), in respect of a policy of insurance with MLC Limited (MLC) described as MLC Life Cover Super Policy 1666-5688L (the policy of insurance).

1. Kenneth Jacobs, Michael Archinal and David Adamson carried on business in partnership between 1996 and 1 July 2001 as veterinary surgeons trading as “Canberra Veterinary Hospital” from premises located adjacent to the Barton Highway at Lyneham in the ACT (the partnership).

1. The other parties, Lidodale Pty Ltd and M and J Archinal Pty Ltd, as second and fourthnamed plaintiffs, are respectively trustees of the family trusts set up by Kenneth Jacobs and Michael Archinal.  Thomas John Charles MacPhillamy (Tom MacPhillamy) and Jane Penelope Adamson (Jane Adamson) are the executors of the estate of the late David Adamson and are the firstnamed defendants.  The secondnamed defendant, AJ Pty Ltd, is the trustee of David Adamson’s family trust.

1. David Adamson died on 7 June 2002.  On 9 May 2002, MLC paid to David Adamson, by way of his…