Tower Australia Ltd v Karim Shakir [2007] NSWDC 239

New South Wales District Court

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

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 CASES CITED: 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.