Perrin v SAS Trustee Corporation

District Court

New South Wales

Medium Neutral Citation:

Perrin v SAS Trustee Corporation [2013] NSWDC 191

Hearing dates:

9 and 10 September 2013

Decision date:

20 September 2013

Before:

Gibson DCJ

Decision:

(1) Set aside the decision of the defendant made on 6 September 2007 insofar as the plaintiff's pension entitlements are concerned.

(2) I determine the plaintiff's pension be increased to 85% (s 10(1A)(b) of the Police Regulation (Superannuation) Act 1906 (NSW)), to be paid on and from 6 September 2007.

(3) The defendant pay the plaintiff's costs.

(4) Exhibits retained for 28 days.

Catchwords:

Police Superannuation and Pensions - retirement on account of incapacity - claim for additional entitlement - incapacity for work outside the police force

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56
District Court Act 1973 (NSW), s 142J
Police Regulation (Superannuation) Act 1906 (NSW), ss 3, 5, 8, 9A, 10, 10B, 14, 21
Uniform Civil Procedure Rules 2005 (NSW), r 31.10

Cases Cited:

Checchia v Insurance Australia Ltd t/as NRMA Insurance (2013) 64 MVR 36
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Joseph Street Pty Ltd v Khay Tek Tan [2010] VSC 586
Lembcke v SAS Trustee Corporation (2003) 56 NSWLR 736
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Poole v State Authorities Superannuation Board (2000) 20 NSWCCR 633

Texts Cited:

-

Category:

Principal judgment

Parties:

Plaintiff: Scott David Perrin
Defendant: SAS Trustee Corporation

Representation:

Plaintiff: Mr P O'Rourke
Defendant: Mr T Ower
Plaintiff: Walter Madden Jenkins
Defendant: Rodney Steventon Blume

File Number(s):

RJ00078/12

Publication restriction:

None

Judgment

1. The plaintiff, by statement of claim filed on 29 February 2012, brings proceedings pursuant to s 21 Police Regulation (Superannuation) Act 1906 (NSW) ("the PRS Act") to set aside a decision of the defendant made on 25 August 2011, and to have this decision replaced by a different decision of this court.

1. The decision of the defendant of 25 August 2011 was as follows:

(a)   The plaintiff be granted an increase in pension from 72.75% to 78.55% of salary of office at exit;

(b)   The said increase in pension to take effect from 6 September 2007, this being the date of pension commencement.

1. The plaintiff does not dispute the date from which the "pension" increase commences, but seeks to have this decision increasing the pension to 78.55% set aside and replaced by a decision to increase the pension to 85% (s 10(1A)(b) of the PRS Act) or, alternatively, a finding that he is "totally incapacitated" pursuant to s 10(1A)(c).

The structure of the PRS Act

1. I shall first set out the legislative structure upon which the plaintiff's claim is based.

1. Pursuant to ss 3 and 5 of the PRS Act the defendant has the obligation to administer the police superannuation fund. The plaintiff is a former police officer who was attested as a police officer on 15 May 1987 and thereby became a contributor to the police superannuation fund from that date.

1. Section 10 of the PRS Act