Nile v Club Plus Superannuation Pty Ltd & Anor [2005] NSWSC 55

New South Wales Supreme Court

CITATION : Nile v Club Plus Superannuation Pty Ltd & Anor [2005] NSWSC 55

HEARING DATE(S) : 07/12/04, 08/12/04, 09/12/04

JUDGMENT DATE : 15 February 2005

JURISDICTION : Equity

JUDGMENT OF : Brownie AJ

DECISION : 1. Declare that the first defendant failed to give real and genuine consideration to the plaintiff's claim under the Trust Deed ; 2. Declare that the second defendant failed to reasonably consider the claim made upon the second defendant by the first defendant in respect of the plaintiff's claim ; 3. Order that there be separately determined now, after the making of the above Declarations, the question whether the second defendant is liable in respect of the claim made concerning the plaintiff ; 4. Stand the proceedings over until 16 March before the Registrar, for the purpose of then fixing a further date for hearing ; 5. Reserve the question of costs for the consideration of the judge conducting the further hearing of the matter, but express the view that, subject to what might be submitted hereafter, the defendants should pay the costs of the plaintiff in respect of the hearing on 7, 8 and 9 December 2004, and any costs thrown away by reason of the necessity for a separate hearing.

CATCHWORDS : Superannuation - Total and Permanent Disablement - The case turns on its facts - Practice and Procedure - Separate determination of questions

Superannuation Industry (Supervision) Act 1993 (Cth) LEGISLATION CITED : Superannuation (Resolution of Complaints) Act 1993 (Cth)

Tonkin v Western Mining Corporation Ltd (1998) 10 ANZ Ins Cases 61-397 at 74,268 Rapa v Patience, McClelland J, 4 April 1985 (unreported) CASES CITED : Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cases 61-113 at 77,536 Chammas v Harwood Nominees Pty Ltd, Hodgson J, 14 April 1993 (unreported) at 11 Sayseng v Kellogg Superannuation Pty Ltd [20032] NSWSC 945 at 77-88