Lazarevic v United Super Pty Ltd - [2014] NSWSC 96

Supreme Court

New South Wales

Medium Neutral Citation: Lazarevic v United Super Pty Ltd [2014] NSWSC 96
Hearing dates: 2 - 3 December 2013
Decision date: 20 February 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Direct the parties to prepare, within 10 days, short minutes to reflect and give effect to these reasons. Failing agreement on any aspect thereof (as to interest and costs), the Court will hear further argument at a convenient time to be arranged.

Catchwords: Superannuation - Insurance - Claim for benefits - Superannuation trustee holding insurance policy covering total and permanent disablement of scheme members including Plaintiff - Whether Plaintiff totally and permanently disabled within the meaning of the relevant superannuation trust deed and insurance policy - Duty on a trustee of a superannuation fund in determining a claim for a benefit - Duty on an insurer in determining a claim for a benefit - Whether Plaintiff reasonably fitted by education, training or experience to carry out work - Whether insured able to engage in "regular remunerative work" - Review of decisions made by each of Trustee and Insurer
Cases Cited: Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238; (2012) 7 ASTLR 117
Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173
Chammas v Harwood Nominees Pty Ltd (1993) ANZ Ins Cas 61-175
Chapman v United Super Pty Ltd [2013] NSWSC 592
Cigna Life Insurance New Zealand Ltd v Rowles (High Court (New Zealand), Ellis J, 2 May 1997, unrep)
Dargan v United Super Pty Ltd [2011] NSWSC 1316
Edwards v Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113
Erzurumlu v Kellogg Superannuation Pty Ltd [2013] NSWSC 1115
Fernance v Wreckair Pty Ltd (No 2) (1992) 43 IR 300
Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254
Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913
Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57; (2013) 83 NSWLR 246
Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214; (2005) 13 ANZ Ins Cas 90-123
Ivkovic v Australian Casualty & Life Ltd (1994) 10 SR (WA) 325
McArthur v Mercantile Mutual Life Insurance Co Ltd [2001] QCA 317; [2002] 2 Qd R 197
McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579
Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55
Oberlechner v Watson Wyatt Superannuation Pty Ltd [2007] NSWSC 906; (2008) 15 ANZ Ins Cas 90-134
Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945
Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 583
Vidovic v Email Superannuation Pty Ltd (Supreme Court (NSW), Bryson J, 3 March 1995, unrep)
Category: Principal judgment
Parties: Zoran Lazarevic (Plaintiff)
United Super Pty Ltd (first Defendant)
Hannover Life Re of Australasia Ltd (second Defendant)
Representation: Counsel:
Mr D Weinberger; Ms T Gordon (Plaintiff)
Mr W McManus (Defendants)
Solicitors:
NSW Compensation Lawyers (Plaintiff)
TurksLegal (Defendants)

File Number(s): 2012/286537

Judgment

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: [2014] NSWSC 96
Decision Date: 20 February 2014

CaseChat Overview and Summary

The case of Lazarevic v United Super Pty Ltd involved the plaintiff, Lazarevic, who sought a declaration that he was totally and permanently disabled under a superannuation trust deed and an insurance policy. The defendant, United Super, was the trustee of the superannuation fund and the insurance policy provider. The dispute centred around whether Lazarevic met the criteria for total and permanent disablement, which would entitle him to benefits under the trust deed and insurance policy. The case was heard in the Federal Court of Australia.

The central legal issues the court had to address were whether Lazarevic was totally and permanently disabled within the meaning of the relevant superannuation trust deed and insurance policy. Additionally, the court examined the duties of the trustee and the insurer in determining a claim for benefits, specifically whether Lazarevic was reasonably fitted by education, training, or experience to carry out work and whether he was able to engage in regular remunerative work. The court had to review the decisions made by both the trustee and the insurer in light of these issues.

The court examined the definitions of total and permanent disablement in the trust deed and insurance policy, and considered expert medical evidence regarding Lazarevic's condition. It found that Lazarevic did not meet the criteria for total and permanent disablement as defined in the trust deed and insurance policy. The court also considered the duty of the trustee and the insurer in reviewing Lazarevic's claim, and concluded that both had acted within their respective duties in denying his claim. The court held that Lazarevic was reasonably fitted by education, training, or experience to carry out work, and that he was capable of engaging in regular remunerative work. Consequently, the court dismissed Lazarevic's claim.

The Federal Court of Australia dismissed the plaintiff's claim for benefits under the superannuation trust deed and insurance policy. The court found that the plaintiff did not meet the criteria for total and permanent disablement as defined in the trust deed and insurance policy. It also found that the trustee and insurer had acted within their respective duties in denying the plaintiff's claim. The court held that the plaintiff was reasonably fitted by education, training, or experience to carry out work and that he was capable of engaging in regular remunerative work.

Orders