Nino v MLC Limited - [2009] NSWSC 400

CITATION: Nino v MLC Limited [2009] NSWSC 400

HEARING DATE(S): 24/04/09

JUDGMENT DATE :
24 April 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 24 April 2009

DECISION: Refer to paras 31, 32, 33 and 35 of judgment.

CATCHWORDS: INTEREST – claim under s 57 Insurance Contracts Act 1984 (Cth) - date from which it was unreasonable for insurer to have withheld payment on claim was three months after claim was made – plaintiff entitled to interest from this date to the date the benefit was paid

LEGISLATION CITED: Insurance Contracts Act 1984 (Cth)

CATEGORY: Principal judgment

CASES CITED: Max Hams v CGU Insurance Ltd [2002] NSWSC 843
Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 857; 213 FLR 174
Bankstown Football Club Limited v CIC Insurance Ltd (Supreme Court of New South Wales, Cole J, 17 December 1993, unreported)

PARTIES: Judith Nino
v
MLC Limited

FILE NUMBER(S): SC 1271/09

COUNSEL: Plaintiff: M J Bleasel
Defendant: G Newton

SOLICITORS: Plaintiff: Firths - The Compensation Lawyers
Defendant: Turks Legal

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE’S LIST

WHITE J

Friday, 24 April 2009

1271/09 Judith Nino v MLC Limited

JUDGMENT

1 HIS HONOUR: On 23 February 2003 the plaintiff made a claim on a policy of insurance issued by the defendant for a benefit for what she claimed was a total and permanent disability within the meaning of the policy. That claim was initially rejected on 15 May 2003. On 15 August 2003 the solicitor for the plaintiff's workers' compensation insurer provided the defendant with certain medical reports evidently prepared in connection with the workers' compensation claim. These were considered by the defendant on 21 August 2003. It notified the plaintiff that to assist it with a further assessment of her claim it would need names and addresses of treating specialists she had seen in the previous eighteen months and further medical information from her treating medical practitioner, Dr Finkelstein. The plaintiff provided the requested information.

2 The plaintiff was referred by the defendant to specialists for further assessment. On 23 February 2004 a Dr Hall provided an assessment of the plaintiff's condition and on 26 February 2004 Dr Sachdev also provided an assessment. In significant respects they conflict.

3 On 19 March 2004 the defendant advised the plaintiff that it stood by its decision made in May 2003 that she did not satisfy the definition of total and permanent disablement in the policy. A further report from an external consultant obtained by the defendant was obtained in May 2004, and on 20 May 2004 the defendant again rejected the claim.

4 On 27 March 2006, the plaintiff having retained a firm of solicitors, through them asked for reconsideration of her claim. A further report from a Dr Patrick (who had seen the plaintiff in 2001 and 2003 in connection with the workers' compensation proceedings) was supplied, namely, a report from that doctor of 12 September 2005.

5 On 25 May…

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: [2009] NSWSC 400
Decision Date: 24 April 2009

CaseChat Overview and Summary

The case of Nino v MLC Limited involved the plaintiff, Nino, who brought a claim for interest under section 57 of the Insurance Contracts Act 1984 (Cth). The dispute centred around the determination of the appropriate date from which the insurer, MLC Limited, was deemed unreasonable in withholding payment on Nino's claim. Nino argued that the insurer should have paid the claim three months after it was first made, and that interest should be awarded from this date until the benefit was ultimately paid.

The central legal issue before the court was to ascertain the precise date from which the insurer's delay in payment became unreasonable, and consequently, the date from which interest should accrue under the statutory provision. The court was tasked with interpreting the statutory language and determining the equitable point at which the insurer's delay constituted a breach of their obligations to the insured.

The court found that the statutory language in section 57 of the Insurance Contracts Act 1984 (Cth) was clear and unambiguous, mandating that interest be paid from the date it was unreasonable for the insurer to withhold payment. The court held that three months post-claim submission was the critical juncture where the insurer's delay became unreasonable. Accordingly, the court ruled that Nino was entitled to interest from this date until the actual payment of the benefit. The court's decision was grounded in a straightforward interpretation of the statutory terms and the facts of the case, ensuring that the insured received compensation for the insurer's unreasonable delay.

Orders