Tower Australia Ltd v Karim Shakir - [2007] NSWDC 239

CITATION: Tower Australia Ltd v Karim Shakir [2007] NSWDC 239

HEARING DATE(S): 5, 6 September 2007
5 October 2007

JUDGMENT DATE:
26 October 2007

JUDGMENT OF: Rein SC DCJ

DECISION: There will be judgment for the Plaintiff in the amount of $112, 781.24 and an order that Mr Shakir pay Tower’s costs.

CATCHWORDS: Insurance company seeking return of monies paid to insured under a sickness and accident policy on the basis of non disclosure and misrepresentation - standard of proof and whether met

CASES CITED: Derry v Peak (1889) 14 App Cas 337
Pendlelowy v Colonial Mutual Life Association Society (1912) 13 CLR 676
Timothy Muggleston v National Mutual Life Association (2004) NSWSC 913
Briginshaw v Briginshaw (1938) 60 CLR 336
Neat Holdings Pty Ltd v Karajan Holding Pty Ltd (1992) 67 ALJR 170; 110 ALR 449
Rejfek v McElroy (1965) 112 CLR 517
Davis v Council of City of Wagga [2004] NSWCA 34
Ferguson v McDonalds Australia Pty Ltd [2005] NSWCA 401
Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366
Waterways Authority v Fitzgibbon (2005) 221 ALR 402; [2005] HCA 57

PARTIES: Tower Australia Ltd
Karim Shakir

FILE NUMBER(S): 5072 of 2006

COUNSEL: Mr R Cavanagh (Plaintiff)
Mr J Young (Defendant)

JUDGMENT

1 The plaintiff (“Tower”) seeks to recover payments in excess of $92, 000 made to the defendant (“Mr Shakir”) pursuant to a policy of life insurance that had been taken out by Mr Shakir with an insurer whose obligations Tower has, it is agreed, taken over. I shall refer to Tower in these reasons without distinguishing between it and its predecessor.

2 The policy as originally effected (in February 1994) had an exclusion of any condition relating to the back. The “back exclusion” was removed on the application of Mr Shakir (through a broker) on 6 April 1995, following submission of a “back questionnaire” that Tower required answered, and which was answered by Mr Shakir (see Exhibit A, p.24).

3 In the questionnaire dated 20 March 1995 Mr Shakir made reference to an incident with his back in September 1992 (which I shall refer to as “the tennis incident”) which he had referred to in the original proposal as an incident in October 1992 (see page 11, Exhibit A) and as a result of which the insurer had included the back exclusion but by his answers indicated that he had no back pain since September 1992. He said it had been a single episode and not recurrent – that in September 1992 he had been off work for two days and that the last symptoms were experienced in September 1992. Question 8 asked “when did you last receive treatment and from whom?” to which he answered “no treatment needed”. It said he had no residual impairment of any kind and was “not bothered in any way”. He was asked for the name and address of any doctor seen or physiotherapist or chiropractor consulted and gave the name and address of Dr. Brian G Marshall (question…

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] NSWDC 239
Decision Date: 26 October 2007

CaseChat Overview and Summary

Tower Australia Limited, an insurance company, brought an action against Karim Shakir in the Supreme Court of New South Wales, seeking the return of monies paid under a sickness and accident policy on the basis of non-disclosure and misrepresentation by the insured. The dispute centred on whether the company had met the required standard of proof to establish that the insured had made misrepresentations or failed to disclose relevant information when applying for the policy.

The legal issues before the court involved determining the standard of proof necessary to establish non-disclosure or misrepresentation and whether the evidence presented by Tower Australia met that standard. The court had to consider whether the evidence was sufficient to prove that the insured knowingly provided false information or omitted relevant facts, which would justify the insurance company's claim for the return of monies paid.

The Supreme Court found that the insurance company had met the required standard of proof. The court was satisfied that the evidence presented was clear and convincing, demonstrating that the insured had provided false information and omitted critical facts. As a result, the court ruled in favour of the insurance company, awarding them the sum of $112,781.24 and ordering the insured to pay the insurance company's costs.

Orders

Orders of the court

There will be judgment for the Plaintiff in the amount of $112, 781.24 and an order that Mr Shakir pay Tower's costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Tower Australia Ltd v Karim Shakir [2007] NSWDC 239
HEARING DATE(S):	5, 6 September 2007 5 October 2007
JUDGMENT DATE:	26 October 2007
JUDGMENT OF:	Rein SC DCJ
DECISION:	There will be judgment for the Plaintiff in the amount of $112, 781.24 and an order that Mr Shakir pay Tower’s costs.
CATCHWORDS:	Insurance company seeking return of monies paid to insured under a sickness and accident policy on the basis of non disclosure and misrepresentation - standard of proof and whether met
CASES CITED:	Derry v Peak (1889) 14 App Cas 337 Pendlelowy v Colonial Mutual Life Association Society (1912) 13 CLR 676 Timothy Muggleston v National Mutual Life Association (2004) NSWSC 913 Briginshaw v Briginshaw (1938) 60 CLR 336 Neat Holdings Pty Ltd v Karajan Holding Pty Ltd (1992) 67 ALJR 170; 110 ALR 449 Rejfek v McElroy (1965) 112 CLR 517 Davis v Council of City of Wagga [2004] NSWCA 34 Ferguson v McDonalds Australia Pty Ltd [2005] NSWCA 401 Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 Waterways Authority v Fitzgibbon (2005) 221 ALR 402; [2005] HCA 57
PARTIES:	Tower Australia Ltd Karim Shakir
FILE NUMBER(S):	5072 of 2006
COUNSEL:	Mr R Cavanagh (Plaintiff) Mr J Young (Defendant)