Maund v FSS Trustee Corporation (No 2)

[2013] NSWSC 233

Supreme Court

New South Wales

Medium Neutral Citation:	Maund v FSS Trustee Corporation (No 2) [2013] NSWSC 233
Hearing dates:	21.03.2013
Decision date:	21 March 2013
Jurisdiction:	Equity Division
Before:	Lindsay J
Decision:	Final Orders made to give effect to judgment at [2013] NSWSC 183
Catchwords:	INSURANCE - general - Interest on insurance money. PROCEDURE - costs - general rule costs follow the event - self-represented litigant succeeded - whether her out-of-pocket expenses should be limited.
Legislation Cited:	Uniform Civil Procedure Rules 2005 NSW rule 28.2
Cases Cited:	-
Texts Cited:	-
Category:	Principal judgment
Parties:	Deborah Maund (Plaintiff) FSS Trustee Corporation (Defendant/Cross Claimant) MetLife Insurance Ltd (Cross Defendant)
Representation:	D Maund in person Mackenzie Thomas Turks Legal
File Number(s):	2012/00126353

Judgment - EX TEMPORE

1. I have received written submissions from all the parties to these proceedings, and heard supplementary oral submissions, about the orders that should be made in disposition of the proceedings.

1. Counsel for FSS has invited me to make orders embodying specific answers to the questions stated for decision by (Associate) Justice Hallen in circumstances in which there has not been an order for the separate determination of the questions under rule 28.2 of Uniform Civil Procedure Rules 2005 NSW. It strikes me as unnecessary for that approach to be taken. In any event, what is required is a set of orders designed to give effect to the Court's determination.

1. The answers that I have given to the questions, posed by way of a statement of the issues between the parties, are set out in the reasons for judgment I published on 12 March 2013: [2013] NSWSC 183.

1. It is common ground that any monies payable by MetLife under the policy of insurance between itself and FSS are payable to FSS rather than to Ms Maund. I proceed on that basis.

1. It is also common ground that any monies paid to FSS by MetLife are to be held by FSS on trust for Ms Maund. I proceed on that basis.

1. The questions for determination in the hearing that led to publication of my reasons for judgment on 12 March 2013 were essentially questions of construction.

1. On the findings made in my reasons for judgment, which I confirm to the extent necessary today, MetLife should have paid to FSS the full entitlement, that ultimately was Ms Maund's beneficial entitlement, on 29 July 2010. On that date, it paid the sum of $613,887. On my findings, it should have paid $643,064. That left a balance of $29,177 unpaid.

1. In my assessment, on and from 29 July 2010 it was unreasonable for MetLife not to have paid the full amount of the entitlement.

1. Accordingly, on an application of section 57 of the Insurance Contracts Act 1984 (Cth) and regulation 32 of Insurance Contracts Regulation 1985 (Cth), there should be an award of interest against MetLife from that date.

1. Ms Maund has invited the Court to determine that she should have an award of interest on the whole $643,064 referable to a much earlier date. She suggests 8 May 2007 as the appropriate earlier date; but, if one were to go back that far, one could not, on any view, go back any earlier than 8 November 2007 or, more correctly, a date after the date upon which FSS submitted a claim on Ms Maund's behalf to MetLife.

1. Be that as it may, in circumstances in which Ms Maund was not medically retired from the Police Force until a much later time than 8 November 2007, I am not prepared to hold that it was unreasonable for MetLife to take the time it did (until 29 July 2010) in the payment of monies referable to Ms Maund.

1. I do not propose to allow for any interest for a period preceding the date upon which monies were paid to Ms Maund, that is 29 July 2010.

1. The corollary of that is that I do propose to make an award of interest on the unpaid balance of $29,177, accruing from 29 July 2010.

1. The parties have agreed, as a matter of arithmetic, that the amount of interest accrued until today is $5,604.03. On that basis, the amount payable by MetLife to FSS referable to Ms Maund is an amount of $34,781.03, representing the sum of $29,177 plus interest of $5,604.03.

1. Submissions have been made about the question of costs. There has been a full range of submissions on that topic but the key, I think, is that if, as I propose, a limited order for costs is made in favour of Ms Maund there is agreement between MetLife and FSS that they should, as between themselves, bear the costs of the proceedings between themselves.

1. I am conscious, in approaching the question of costs vis á viz Ms Maund, that the amount of money she has recovered in these proceedings is small, particularly with reference to jurisdictional limits of other courts. However, she has succeeded in establishing that she was underpaid her (beneficial) entitlements and, it seems to me, the interests of justice require that she be allowed her out of pocket expenses to the extent that, consistently with authority, they can be allowed in her favour. I propose to make an order that FSS pay the costs of Ms Maund assessed in the sum of $3,270.78. There is no dispute between the parties as to the quantification of that sum.

1. Accordingly, I make the following orders and notations:

(1) Declare that the amount of the benefit payable in respect of the plaintiff ("Ms Maund") under the policy of insurance between FSS Trustee Corporation ("FSS") and MetLife Insurance Limited ("MetLife") giving effect to the First State Superannuation Scheme is $643,064, of which $613,887 was paid to Ms Maund on 29 July 2010, leaving a balance of $29,177 unpaid.

(2) Declare that the unpaid balance of $29,177 is payable by MetLife to FSS (together with an allowance for interest assessed at $5,604.03 payable under section 57 of the Insurance Contracts Act 1984 (Cth) and regulation 32 of the Insurance Contracts Regulations 1985 (Cth)) as trustee for Ms Maund on a trust governed by the First State Superannuation Scheme and rules of the Scheme.

(3) Order that MetLife pay to FSS (as trustee for Ms Maund on a trust governed by the First State Superannuation Scheme and rules of the Scheme) the sum of $34,781.03 (representing the principal sum of $29,177 together with interest in the amount of $5,604.03).

(4) Order that no interest is to accrue on that sum of $34,781.03 if it is paid by MetLife within 28 days of today's date.

(5) Order that FSS specifically perform its obligation to Ms Maund to recover from MetLife, and to pay to her, the sum of $34,781.03 (together with such, if any, interest as may hereafter accrue on the judgment debt of MetLife).

(6) Order that FSS pay Ms Maund's costs of these proceedings assessed in the sum of $3,270.78.

(7) Note that no order as to costs is made as between FSS and MetLife, to the intent that they each pay or bear their own costs of the proceedings.

(8) Reserve liberty to apply in respect of the working out of these orders.

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Decision last updated: 25 March 2013