The Advanced Technology Group Pty Ltd v ING Life Ltd; Colin John O'Brien v ING Life Ltd [2006] NSWDC 4

New South Wales District Court

CITATION: The Advanced Technology Group Pty Ltd v ING Life Ltd; Colin John O'Brien v ING Life Ltd [2006] NSWDC 4

HEARING DATE(S): 22/05/06 - 01/06/06

JUDGMENT DATE: 9 August 2006

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

DECISION: Verdicts for the Plaintiffs. Direct the parties to bring in Short Minutes of Order to reflect these reasons for Judgment.

CATCHWORDS: Income Protection Policies - Meaning of Total Disability - Chronic Fatigue Syndrome - Meaning of Gainful Occupation

Willkie v Gordion Runoff Limited (2005) HCA 17 Australian Casualty Co Limited v Frederico (1985-1986) 160 CLR 513 at 520-521 CASES CITED: Jarrad v Melbourne Metropolitan Railways (1978) 21 ALR 201 at 209 Johnson v IGE Insurance Company (1997) EWCA 1395 (15 April 1997) Abacus Consultants v National Mutual Life of Australia (2003) SADC 135 Bensky Mercentile Mutual Limited (1999) 22SR (WA) 144

The Advanced Technology Group Pty Limited (Plaintiff) PARTIES: ING Life Limited (Defendant) Colin John O'Brien (Plaintiff) ING Life Limited (Defendant)

FILE NUMBER(S): 1870/04; 1871/04

COUNSEL: B A J Coles QC with J O Anderson for the Plaintiffs R A Cavanagh for the Defendant

JUDGMENT

1 There are two sets of proceedings before the Court. In 1870/04 the plaintiff is Advanced Technology Group Pty Limited (ATG) and the Defendant is ING Life Limited (ING). In proceedings number 1871/04 the plaintiff is Colin Joseph O'Brien, whom I will refer to as the plaintiff. The defendant is ING.

2 The plaintiff and ATG are both claiming benefits under the terms of two income protection insurance policies taken out by each of them with ING. The plaintiff's policy was taken out in 1990 and commenced on 24 December 1990 (the "Plaintiff's Policy") and the other was entered into in 1992 and commenced on 9 April 2002 (the "ATG Policy").