Oberlechner v Tower Australia Limited [2002] NSWSC 814

Reported Decision : (2002) 12 ANZ Insurance Cases 61-533

New South Wales Supreme Court

CITATION : Oberlechner v Tower Australia Limited [2002] NSWSC 814 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3837/01 HEARING DATE(S) : 2 to 5 September, 2002 JUDGMENT DATE : 6 September 2002

PARTIES : Alfredo Oberlechner - Plaintiff Tower Australia Limited - Defendant JUDGMENT OF : Palmer J

COUNSEL : M.L. Williams SC, D.T. Kell - Plaintiff M.L. Brabazon - Defendant SOLICITORS : Herbert Weller - Plaintiff P.W. Turk & Associates - Defendant CATCHWORDS : INSURANCE - CONTRACTS REVIEW ACT - Deed of Release of insurance claim processed when insured with good claim suffering from depression, acute grief and in severe financial difficulty. HELD: Deed declared void - INSURANCE. Whether plaintiff incapable of earning due to continuing depression. HELD: Plaintiff entitled to continuing benefits under policy. LEGISLATION CITED : Contracts Review Act 1980 (NSW) - s.7(1), s.9(2) Supreme Court Act 1970 (NSW) - s.94 - Amcor Limited v Watson (2002) Aust Contract Reporter 90-110 CASES CITED : - Baltic Shipping Company v Dillon: Mikhail Lermontov (1991) 22 NSWLR 1 - Elders Rural Finance Ltd v Smith (1996) 41 NSWLR 296 DECISION : Plaintiff entitled to declarations and orders sought.

Introduction

1 In these proceedings the Plaintiff claims unpaid benefits said to be owing under an Income Protection Policy administered by the Defendant and declarations to the effect that he is presently entitled to continuing benefits under that Policy. The Defendant says that these claims were released by the Plaintiff in a Deed of Release dated 2 January 2002; alternatively, it says that the Plaintiff ceased to be entitled to benefits under the Policy as from 3 September 2000, when he became capable of working. 2 There are two principal issues: