Taylor v Asteron Life Limited - [2019] NZCA 683

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA256/2019
CA308/2019
[2019] NZCA 683

BETWEEN	PETER JAMES TAYLOR Appellant
AND	ASTERON LIFE LIMITED Respondent

Court:	Kós P, Cooper and Collins JJ
Counsel:	A C Beck for Appellant C M Meechan QC and A Borchardt for Respondent
Judgment: (On the papers)	20 December 2019 at 10 am

JUDGMENT OF THE COURT

AThe application for a stay of execution is declined.
BCosts are reserved.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

The appellant Mr Taylor has applied for a stay of execution of the judgment of the High Court delivered on 7 May 2019[1] and of the subsequent judgment on interest and costs.[2] The application is opposed by the respondent (Asteron). We have dealt with the application on the papers at the request of Asteron and in the absence of any opposition from the appellant.
[1]Taylor v Asteron Life Ltd [2019] NZHC 978 [High Court judgment].
[2]Taylor v Asteron Life Ltd [2019] NZHC 1489 [costs judgment].
In the substantive decision, Cooke J dismissed claims by Mr Taylor seeking a declaration that he was entitled to continuing benefits under an income protection insurance policy, and an order for the payment of arrears said to be due under the policy.[3] In the same judgment, the High Court allowed Asteron’s counter‑claim, holding that Mr Taylor had breached his obligation of good faith by misrepresenting the amount of time he had spent working while receiving payments under the policy.[4] It held that he was liable to repay the sum of $371,286.70.[5]
[3]High Court judgment, above n 1, at [2] and [124].
[4]At [96].
[5]At [125].
In the subsequent costs judgment, the Judge held that Asteron was, in addition, entitled to interest in the amount of $128,153.66 to the date of judgment (28 June 2019).[6] With costs and disbursements, the net judgment debt is now approximately $666,000. Mr Taylor filed an appeal against the High Court judgment on 5 June 2019 and subsequently appealed against the costs judgment. Both appeals are to be heard together.
[6]Costs judgment, above n 2, at [4].
Mr Taylor made an application for an order staying execution of the High Court judgments. His application was opposed and it was declined by the trial Judge.[7] The present application is advanced on the same basis as in the High Court, but it is supported by a further affidavit sworn by Mr Taylor on 4 October 2019.
[7]Taylor v Asteron Life Ltd [2019] NZHC 2459 [stay judgment].
In the meantime, Asteron has issued a bankruptcy notice in the High Court at Dunedin, and Mr Taylor has filed an application to set that aside.

Background

For present purposes, it is sufficient to state the background briefly. Mr Taylor was in business on his own account as an insurance broker and took out an income protection insurance policy. In July 2010, he made a claim under the policy as a consequence of significant medical problems. Asteron…

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.

Continue reading Taylor v Asteron Life Limited

Details

AGLC: Taylor v Asteron Life Limited [2019] NZCA 683
Case: [2019] NZCA 683
Decision Date: 20 December 2019 at 10 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Peter James Taylor against the judgments of the High Court, which dismissed his claims for continuing benefits under an income protection insurance policy and held that he had breached his obligation of good faith. The appeal also addressed the subsequent judgment on interest and costs. The Court of Appeal declined the application for a stay of execution of the judgments and reserved costs.

The substantive decision of the High Court dismissed Mr Taylor’s claims and allowed Asteron’s counterclaim that Mr Taylor had breached the duty of good faith by misrepresenting the amount of time he had spent working while receiving payments under the policy. Mr Taylor appealed on the basis of various alleged errors in the substantive judgment and in dismissing the application for a stay. He also argued that the absence of security should not be emphasised to the exclusion of other factors which the Court is required to take into account in a balancing exercise.

The Court of Appeal found that Mr Taylor had not provided the primary evidence which establishes the assertions he made about the nature of the trust, its ownership of the property in which he lives, and the proceeds of sale of his business. The Court was not satisfied that the information now provided significantly added to the information that was before the High Court. In the absence of a stay, the Court was not prepared to find that Mr Taylor will not be able to pursue the appeal. However, in the absence of security, the overall balance of convenience favoured refusal of the application. The Court of Appeal declined the application for a stay of execution and reserved costs.

Orders