NSW Caselaw
Reported Decision : 59 NSWLR 585 (2004) 13 ANZ Insurance Cases 90-120
New South Wales Court of Appeal
CITATION : Asteron Life Limited v Zeiderman [2004] NSWCA 47 HEARING DATE(S) : 18/02/04 JUDGMENT DATE : 5 March 2004
JUDGMENT OF : Spigelman CJ at 1; Meagher JA at 34; Bergin J at 52 DECISION : 1. Appeal upheld; 2. The judgment of the first instance to be set aside; 3. The Statement of Claim be dismissed; 4. The respondent pay the appellant's costs of the appeal; and 5. The respondent pay the costs of the matter below at first instance.
CATCHWORDS : APPEAL - MEDICAL INSURANCE - HEALTH INSURANCE - STATUTORY INTERPRETATION - INSURANCE CONTRACTS ACT 1984 (CTH) - Dispute on medical insurance policy as to whether the exclusionary provisions refer to the diagnosis or the occurrence of an illness or disability - whether Insurance Contracts Act (particularly s47) over-rides the policy provisions on this issue - Held: Appeal allowed - Insurance Contracts Act (s47) construed in the context of the Act as a whole - the purpose of s47 is to mitigate the effects of certain contractual provisions which seek to avoid liability - reference in the terms of the contract not to pre-contractual pathology, but to post-contractual diagnosis - respondent to pay appellant's costs of both the appeal and the trial at first instance. LEGISLATION CITED : Insurance Contracts Act 1984 (Cth) Principles of Insurance Law in Australian & New Zealand, Butterworths, Sydney, 1991 East End Real Estate Pty Limited v C E Heath Casualty & General Insurance LImited (1991) 25 NSWLR 400 at 403F CASES CITED : Antico v Heath Fielding Australia Pty Ltd (1997) 188 CLR 652 at 668-669 FAI Insurance Co Limited v Australian Hospital Care Pty Ltd (2001) 204 CLR 641 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 Asteron Life Limited (ABN 64 001 698 228) (Formerly Royal & Sun Alliance Financial Services Limited ABN 64 001 698 228) PARTIES : v Daryl Zeiderman FILE NUMBER(S) : CA 40530 of 2003 COUNSEL : A: P Taylor SC R: D Jackson QC & K Smark SOLICITORS : A: Abbott Tout R: Keddies
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