SUPREME COURT OF QUEENSLAND
CITATION:
Rathie v ING Life [2004] QSC 146
PARTIES:
DAVID STEWART RATHIE
(plaintiff)
ING LIFE LIMITED
(defendant)FILE NO:
S10141 of 1999
DIVISION:
Trial
PROCEEDING:
Trial
DELIVERED ON:
8, 27 April 2004
DELIVERED AT:
Brisbane
HEARING DATE:
18, 19 February 2004, 27 April 2004
JUDGE:
Wilson J
ORDERS:
1. That the action be dismissed;
2. That the plaintiff pay the defendant’s costs of the action (including the defendant’s costs of and resulting from the amended pleadings, including the costs of amending the Defence and preparing the further submissions), such costs to be assessed on the standard basis. The costs dealt with by the order of Mullins J dated 19 December 2003 are not affected by this order;
3. That the defendant pay the plaintiff’s costs of the appearance on 27 April 2004 (in relation to the costs of the proceedings), such costs to be assessed on the standard basis.
CATCHWORDS:
INSURANCE – ACCIDENT AND SICKNESS INSURANCE – THE CONTRACT – whether the standard form policy document contained all the relevant terms and conditions of the contract of insurance – where policy document did not contain transfer of acceptance terms – where parties adopted and acted upon standard form policy document - where correspondence was exchanged before commencement of cover and before issue of policy document – whether relevant terms and conditions were to be found in such correspondence – where correspondence exchanged after commencement of cover – whether subsequent correspondence an aid to construction of the contract
INSURANCE – ACCIDENT AND SICKNESS INSURANCE – THE CONTRACT – whether the “benefit” payable under the contract was to be read as a formula or dollar amount - where “benefit” was defined in the policy document as “the monthly amount… based on the percentage of the insured person’s income”
INSURANCE – ACCIDENT AND SICKNESS INSURANCE – THE CONTRACT – where a replacement policy was issued after the plaintiff became disabled – whether the increased Maximum Dollar Benefit under replacement contract is applicable to the plaintiff– where plaintiff ceased to be a member of the policy due to his disability prior to the issue of the replacement policy
INSURANCE – ACCIDENT AND SICKNESS INSURANCE – THE CONTRACT – transfer of acceptance terms – whether the defendant accepted cover for increases above previous insurer’s forward underwritten limit – where the defendant agreed to accept existing members on terms no less favourable than those imposed by the previous insurer – where the defendant accepted cover for increases in the benefit payable up to the underwritten level – whether the acceptance extended to increases beyond the underwritten level up to the Dollar Maximum Benefit.
PROCEDURE – COSTS – where defendant offered to settle on terms that action be dismissed and each party bear its own costs – where plaintiff wholly unsuccessful – whether rule 361 of Uniform Civil Procedure Rules applies – rule not applicable – general discretion as to costs – whether defendant should have its costs on indemnity basis.
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- AGLC
- Rathie v ING Life [2004] QSC 146
- Case
- [2004] QSC 146
- Decision Date
CaseChat Overview and Summary
The court examined the arguments regarding whether the policy document, which did not include transfer of acceptance terms, was the complete contract. It concluded that the parties had adopted and acted upon the standard form policy document and that relevant terms and conditions were to be found in correspondence exchanged before the commencement of cover. The court determined that the "benefit" payable under the contract should be read as a formula rather than a fixed dollar amount. Regarding the replacement policy, the court found that the increased Maximum Dollar Benefit did not apply to the plaintiff as he had ceased to be a member of the policy due to his disability before the replacement policy was issued. Finally, the court found that the defendant insurer did not accept cover for increases beyond the underwritten level up to the Dollar Maximum Benefit.
The court dismissed the plaintiff's action and ordered the plaintiff to pay the defendant’s costs of the action on the standard basis. The court also ordered the defendant to pay the plaintiff’s costs of the appearance on 27 April 2004, also on the standard basis. The orders did not affect the costs dealt with by the order of Mullins J dated 19 December 2003.
Orders
Orders of the court
1. That the action be dismissed;
2. That the plaintiff pay the defendant’s costs of the action (including the defendant’s costs of and resulting from the amended pleadings, including the costs of amending the Defence and preparing the further submissions), such costs to be assessed on the standard basis. The costs dealt with by the order of Mullins J dated 19 December 2003 are not affected by this order;
3. That the defendant pay the plaintiff’s costs of the appearance on 27 April 2004 (in relation to the costs of the proceedings), such costs to be assessed on the standard basis.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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