George Maurice Norman Farkas v Northcity Financial Services Pty Ltd & 3 Ors [2004] NSWSC 206

New South Wales Supreme Court

CITATION : George Maurice Norman Farkas v Northcity Financial Services Pty Ltd & 3 Ors [2004] NSWSC 206 23, 24 and 25 March 2004 HEARING DATE(S) : 2 and 28 April 2004 2 June 2004. JUDGMENT DATE : 22 June 2004

JURISDICTION: Equity Division Commercial List JUDGMENT OF : Bergin J DECISION : The fourth defendant is liable to pay Terminal Illness Benefits totalling $750,000 to the plaintiff. Negligence claims dismissed.

CATCHWORDS : [INSURANCE] - Claims that insurer liable to pay the plaintiff "terminal illness benefits" - Plaintiff diagnosed with cancer - Policy responds upon the "occurrence" of a "terminal illness" defined as a condition "highly likely" to result in death within 12 months - Construction of "highly likely"- Whether "terminal illness" relates to the prognosis of disease at diagnosis with treatment or without treatment-Whether the "occurrence" of a terminal illness relates to the time of diagnosis or to when the insured first suffers symptoms. - [NEGLIGENCE] - Claims insurer and insurance brokers negligently failed to inform plaintiff of insurer's acceptance of proposal - Exclusion clause if insured event occurred within 90 days of policy start date - Whether plaintiff notified of acceptance on 21 January 2002 or only on 25 February 2002- Effect of delay in notification. - [WORDS & PHRASES] - "occurrence" - "terminal illness" - "highly likely". LEGISLATION CITED : Insurance Contracts Act 1984 (Cth) Asteron Life Limited v Zeiderman [2004] NSWCA 47 Australian Casualty Co Ltd v Federico (1986) 160 CLR 513 Edwards v The Hunter Valley Co-op Dairy Co Ltd & Anor (1992) 7 ANZ Insurance Cases 61-113 CASES CITED : James Noel Eric Butcher v Martin Port (1985) 3 ANZ Insurance Cases 60-638, (1985) 1 NZLR 491 Johnson v American Home Assurance Company (1998) 192 CLR 266 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No2] (2001) 50 NSWLR 665 George Maurice Norman Farkas (Plaintiff) Northcity Financial Services Pty Ltd (First Defendant) PARTIES : K & M Pty Ltd (Second Defendant) Donald Michael Shar (Third Defendant) Tower Australia Ltd (Fourth Defendant) FILE NUMBER(S) : SC 50154/03 BW Walker SC, R Lancaster (Plaintiff) COUNSEL : JJ Graves SC, S Jacobs (First Defendant) JB Simpkins SC, RA Pepper (Second and Third Defendants) NC Hutley SC, D Villa (Fourth Defendant) Bruce & Stewart (Plaintiff) SOLICITORS : Smith Lawyers (First Defendant) Minter Ellison (Second and Third Defendants) Turks Legal (Fourth Defendant)