Sayseng v Kellogg Superannuation Pty Ltd - [2007] NSWSC 857

Reported Decision:
213 FLR 174
(2007) 14 ANZ Insurance Cases 61-738

New South Wales

Supreme Court

CITATION: Diosdado Sayseng v Kellogg Superannuation Pty Ltd & Anor [2007] NSWSC 857

HEARING DATE(S): 13.07.2007

JUDGMENT DATE :
8 August 2007

JUDGMENT OF: Nicholas J

DECISION: para 24

CATCHWORDS: INTEREST - s 57 Insurance Contracts Act 1984 (Cth) - date from which it was unreasonable for insurer to have withheld payment on claim - discretionary judgment

LEGISLATION CITED: Insurance Contracts Act 1984 (Cth) s 57

CASES CITED: Bankstown Football Club v CIC Insurance Limited [Unreported, NSWSC, 17 December 1993]
Edwards v. The Hunter Valley Co-op Dairy Co. Ltd & Anor [1992] 7 ANZ Ins Cas 61-113
HIH Casualty & General Insurance Limited v Insurance Australia (No. 2) [2006] VSC 128
Max Hams & Anor v CGU Insurance Limited [2002] NSWSC 843
NRMA Insurance Ltd v Tatt (1989) 5 ANZ Ins Cas 60-902
Sayseng v Kellogg Superannuation Pty Ltd & Anor [2003] NSWSC 945

PARTIES: Diosdado Sayseng - plaintiff
Kellogg Superannuation Pty Ltd - first defendant
Hannover Life re of Australia - second defendant

FILE NUMBER(S): SC 5048/02

COUNSEL: B W Rayment QC/G B Beauchamp/M Gollen - plaintiff
Ms V Heath - first defendant
D Davies SC - second defendant

SOLICITORS: Firths the Compensation Lawyers - plaintiff
Minter Ellison - first defendant
Deacons - second defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Nicholas J

8 August 2007

5048/02 Diosdado Sayseng v Kellogg Superannuation Pty Ltd & Anor

JUDGMENT

1 His Honour: In the judgment delivered 8 June 2007 I held that, continuously since 11 December 1997, the plaintiff had been in a condition of total and permanent disablement within the meaning of the policy, and that the insurer was liable to pay the trustee agreed benefits in the amount of $147,055.00, together with interest. The amount was paid to the trustee on 29 June 2007.

2 The issue for determination is the plaintiff’s claim to interest under s 57 Insurance Contracts Act 1984 (Cth) (the Act). Relevantly, the section provides:

“57 Interest on claims

(1) Where an insurer is liable to pay to a person an amount under a contract of insurance or under this Act in relation to a contract of insurance, the insurer is also liable to pay interest on the amount to that person in accordance with this section.

(2) The period in respect of which interest is payable is the period commencing on the day as from which it was unreasonable for the insurer to have withheld payment of the amount and ending on whichever is the earlier of the following days:

(a) the day on which the payment is made …”

3 In NRMA Insurance Ltd v Tatt (1989) 5 ANZ Ins Cas 60-902 McHugh, JA (with whom Hope, Samuels JJA agreed) said (p 75, 752) “… that sec. 57 states completely, exhaustively and conclusively the law on the subject of interest payable for periods during which a person has been kept out of…

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: [2007] NSWSC 857
Decision Date: 8 August 2007

CaseChat Overview and Summary

The case of Sayseng v Kellogg Superannuation Pty Ltd involved the respondent, a superannuation fund, and the appellant, an individual, who sought compensation for a claim made under a policy of insurance. The primary issue before the court was to determine the date from which interest should accrue on the outstanding amount due to the appellant. This determination hinged on identifying the point at which it became unreasonable for the insurer to withhold payment on the claim. The court was tasked with applying section 57 of the Insurance Contracts Act 1984 (Cth) to ascertain the appropriate date.

The court's analysis focused on the interpretation of section 57 of the Insurance Contracts Act 1984 (Cth), which provides for the calculation of interest on amounts due under insurance policies. The key legal issue was to discern the moment when it became unreasonable for the insurer to delay payment. This required a detailed examination of the insurer's conduct, the circumstances surrounding the claim, and the timeline of events leading up to the payment being made. The court considered whether the insurer had acted unreasonably and the implications of that determination on the accrual of interest.

In reaching its decision, the court examined the evidence and submissions presented by both parties. It concluded that the insurer's delay in payment was unreasonable from a specific date, which was determined based on the circumstances of the case. The court found that interest should accrue from this date, exercising its discretion under the relevant statute. The court's reasoning was grounded in a balanced interpretation of the statutory provisions and the factual context of the case. Ultimately, the court ordered that interest be calculated from the date identified as the point of unreasonable delay, directing the insurer to compensate the appellant accordingly.

Orders