Westpac Life Insurance Services Limited v Szenasi

[2022] FCA 486

FEDERAL COURT OF AUSTRALIA

Westpac Life Insurance Services Limited v Szenasi [2022] FCA 486  

File number(s):	NSD 1143 of 2021
Judgment of:	JAGOT J
Date of judgment:	28 April 2022
Date of publication of reasons:	3 May 2022
Catchwords:	INSURANCE — where life insurance company could not obtain discharge in relation to money payable under life insurance policy as beneficiaries unable to be located —order made under s 215(1) of the Life Insurance Act 1995 (Cth) for insured sum to be paid into Court
Legislation:	Life Insurance Act 1995 (Cth) s 215
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	14
Solicitor Advocate for the Applicant:	James Stanton
Solicitor for the Applicant:	Minter Ellison Lawyers
Counsel for the Respondent:	The Respondent did not appear

ORDERS

NSD 1143 of 2021

BETWEEN:

WESTPAC LIFE INSURANCE SERVICES LIMITED

Applicant

AND:

GUSZTAV SZENASI

Respondent

ORDER MADE BY:	JAGOT J
DATE OF ORDER:	28 APRIL 2022

THE COURT ORDERS THAT:

1.The applicant’s costs fixed in the lump sum amount of $12,000 be paid to the applicant, such payment to be made out of the amount payable by the applicant of $50,000 under policy number 100473957 issued by St. George Life Limited ACN 076 763 936 to the late Zsofia Papp on or around 5 February 2008 in respect of which the beneficiaries were Akos Spiegel and Viktor Spiegel (the policy), before the payment into Court referred to in declaration 2.

THE COURT DECLARES THAT:

2.The sum of $50,000 is the amount payable by the applicant under the policy.

3.The amount payable referred to in declaration 2, less the amount of costs required to be paid under order 1, when paid into the Court by the applicant, is a payment under s 215(1) of the Life Insurance Act 1995 (Cth), and on such payment, the applicant be discharged from any liability in relation to that amount that may have arisen in respect of the policy pursuant to s 215(2) of the Life Insurance Act 1995 (Cth).

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1. These reasons for judgment explain why I made an order on 28 April 2022 as follows:

   THE COURT ORDERS THAT:

   1.The applicant’s costs fixed in the lump sum amount of $12,000 be paid to the applicant, such payment to be made out of the amount payable by the applicant of $50,000 under policy number 100473957 issued by St. George Life Limited ACN 076 763 936 to the late Zsofia Papp on or around 5 February 2008 in respect of which the beneficiaries were Akos Spiegel and Viktor Spiegel (the policy), before the payment into Court referred to in declaration 2.

   THE COURT DECLARES THAT:

   2.The sum of $50,000 is the amount payable by the applicant under the policy.

   3.The amount payable referred to in declaration 2, less the amount of costs required to be paid under order 1, when paid into the Court by the applicant, is a payment under s 215(1) of the Life Insurance Act 1995 (Cth), and on such payment, the applicant be discharged from any liability in relation to that amount that may have arisen in respect of the policy pursuant to s 215(2) of the Life Insurance Act 1995 (Cth).

   Background

2. In February 2008, St George Life Limited issued a life insurance policy (number 100473957) (policy) to Ms Zsofia Papp for an insured sum of $100,000.

3. Ms Papp passed away on 29 April 2015. At that date:

   (1)the applicant, Westpac Life Insurance Services Limited, was the insurer of the policy following a merger between the St George Group and the Westpac Group;

   (2)the sum insured was $50,000; and

   (3)the nominated beneficiaries under the policy, in equal proportions, were Mr Akos Spiegel and Mr Viktor Spiegel.

4. The respondent, Mr Gusztav Szenasi (whose relationship to Ms Papp is unclear), sent a letter to the applicant on 4 May 2015 informing it that Ms Papp had passed away. Around this date, the respondent also submitted a claim form to the applicant in which he made a claim on the sum insured.

5. Following receipt of that claim, a representative of the applicant had several conversations with the respondent’s solicitor, explaining that the sum insured was to be paid to the nominated beneficiaries and requested their contact details. The applicant requested proof of identity documents, contact and bank account details for those beneficiaries (who resided overseas and apparently could not be contacted directly) from the respondent’s solicitors by 30 November 2015.

6. These requests were not met. From December 2015 to around October 2020, the applicant followed up on the outstanding documents and details, but was informed by the respondent’s solicitor that the respondent was overseas and unable to provide any information regarding the beneficiaries. In any case, those solicitors were not retained by, and did not appear to be in contact with, the beneficiaries.

7. Having failed to obtain any information regarding the nominated beneficiaries in order to pay out the policy, the applicant sought orders that it may pay the sum insured into the Court pursuant to s 215 of the Life Insurance Act 1995 (Cth), and that it be discharged of any liability in relation to that amount that may arise under the policy.

   Statutory provisions

8. Section 215 of the Life Insurance Act provides that:

   215     Power to pay money into Court

   (1)A life company may pay into the Court any money payable by the company in respect of a policy for which, in the company’s opinion, no sufficient discharge can otherwise be obtained.

   (2)Payment of the money into the Court discharges the company from any liability under the policy in relation to the money.

   (3)Any money paid into the Court under this section is to be dealt with according to the order of the Court.

   (4)This section has effect subject to the Rules of the Court.

9. The applicant is a “life company” as defined in the Dictionary of the Life Insurance Act for the purpose of s 215(1) because it carries on a life insurance business in Australia.

   Sufficient discharge?

10. With respect to the remaining condition for an order under s 215(1), I accept that no sufficient discharge can otherwise be obtained in relation to the money payable under the policy.

11. As set out above, the applicant has received no substantive communication from the respondent regarding his claim on the policy since 4 May 2015, and no information has been forthcoming regarding the location or contact details of the nominated beneficiaries.

12. Since the applicant filed its originating application and concise statement on 4 November 2021 (court documents) it has taken the following steps to attempt to discharge its payment obligation under the policy:

    (1)as deposed to in the affidavit of Mr Ivan Li (solicitor for the applicant) dated 11 March 2022, the applicant made various unsuccessful attempts to personally serve the court documents on the respondent at his last-known Australian residential address and that of his solicitor, before obtaining the respondent’s email address from his son;

    (2)on 24 January 2022, the applicant sent the court documents to the respondent (who was confirmed to be living in Hungary) by email. The respondent confirmed receipt but asked that the matter be forwarded to his Australian solicitors. In February 2022, those solicitors indicated to the Court they had no instructions to act on the respondent’s behalf in this matter;  

    (3)on 11 March 2022, the applicant sought orders for deemed and/or substituted service of the court documents under the Hague Convention. After considering the applicant’s written submissions, on 22 March 2022 I ordered that service of the court documents was deemed to have been effected on the respondent by its email of 11 March 2022; and

    (4)on 29 March 2022, the applicant informed the respondent that the matter was listed for a case management hearing before me on 13 April 2022 at 2:30pm, and subsequently forwarded the remote hearing link details to the respondent on 5 April 2022. Both of these emails were tendered by the applicant at the case management hearing on 13 April 2022.

13. The respondent did not appear at the case management hearing. Other than confirming receipt of the court documents on 24 January 2022, the respondent has not responded to the applicant’s attempts to contact him nor provided any further information regarding the nominated beneficiaries or his putative claim on the policy.

14. In these circumstances, I am satisfied that the applicant is not able to discharge its payment obligations under the policy. It follows that it is appropriate for an order under s 215(1) of the Life Insurance Act to be made, and for the applicant to be consequently discharged from any liability under the policy in relation to payment of the sum insured.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.

Associate:

Dated: 3 May 2022