Carolyn Philips (nee Durrand) v Tower Australia Ltd [2008] NSWSC 1047

New South Wales Supreme Court

CITATION : Carolyn Philips (nee Durrand) v Tower Australia Ltd [2008] NSWSC 1047

HEARING DATE(S) : 1/10/08

JUDGMENT DATE : 8 October 2008

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

DECISION : The parties are to bring in short minutes of order.

CATCHWORDS : CONTRACT - Insurance - Other Disability Income - Workers Compensation, Workcare, Accident Compensation or similar State or Federal legislation - Disability Support Pension - Calculation of Interest - Date from which "it was unreasonable for the insurer to have withheld payment"

LEGISLATION CITED : Social Security Act 1991 (Cwlth) Insurance Contracts Act 1984 (Cwlth)

CASES CITED : Philips v Tower Australia Ltd [2007] NSWSC 946

TEXTS CITED : Broom H, Broom's Legal Maxims, 10th ed (1989) Pakistan Law House

PARTIES : Carolyn Philips (nee Durrand) (Plaintiff) Tower Australia Ltd (Defendant)

FILE NUMBER(S) : SC 50135/06

COUNSEL : Mr B Rayment QC, Mr M Gollan (Plaintiff) Mr R Cavanagh (Defendant)

SOLICITORS : Firths (Plaintiff) HWL Ebsworth (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Einstein J

Wednesday 8 October 2008

50135/06 Carolyn Philips (Nee Durrand) v Tower Australia Ltd JUDGMENT The state of these proceedings 1 These proceedings were commenced in the District Court. Upon the proceedings being transferred to this Court it became plain that there was a mismatch as between:

i. the pleadings initially pursued before the District Court and

ii. the plaintiff's successful reliance upon an estoppel case in the proceedings heard by McDougall J [2007] NSWSC 946 [10 August 2007]. 2 Whilst it is unnecessary to repeat the record it is clear that McDougall J was unable to deal with all the issues likely to arise but found that the defendant was estopped from asserting that the policy had lapsed. 3 The effect of his Honour's order was that there was a contract of insurance between the plaintiff and the defendant commencing 12 February 1997 which remained on foot up to and including the date of his Honour's orders. 4 After the judgment the plaintiff paid the outstanding premium and lodged a formal claim for benefits under the terms of the Policy. The further hearing 5 Until recently the further hearing was to determine a number of issues and critically to determine whether or not the plaintiff had been disabled under the Policy from 1999. That dispute has been resolved leaving only the following matters for determination: