NSW Caselaw
New South Wales Supreme Court
CITATION : Tuftevski v Total Risks Management Pty Ltd as Trustee of the BHP Billiton Superannuation Fund (No 2) [2009] NSWSC 1021
HEARING DATE(S) : 21 September 2009
JUDGMENT DATE : 30 September 2009
JUDGMENT OF : Smart AJ
DECISION : Order that the defendant pay the plaintiff out of the BHP Billiton Superannuation Fund $465,420.00 (being principal of $260,049.00 and interest of $205,371.00) and the plaintiff's costs on an ordinary basis.
CATCHWORDS : Plaintiff entitled to Disablement benefit under the Fund Rules from about 15 November 1999, being first decision refusing plaintiff such benefit - this and subsequent decisions of March 2000 and February 2001 set aside due to lack of genuine decision making and declared void and of no effect - refusal of Fund's Trustee to further consider plaintiff's claim for disablement benefit on 24 February 2006 was void and of no effect - Court executes Trust - Trustee subsequently accepting plaintiff's claim to disablement benefit upon receipt of further medical reports - refusal of compound interest as serious misconduct on part of Trustee not established - commercial rates of interest not granted - Plaintiff held entitled to interest at Trustee rate of interest of 8% per annum - Calderbank offer - conduct of defendant not unreasonable - costs awarded on an ordinary basis
LEGISLATION CITED : Superannuation (Resolution of Complaints) Act 1993
CATEGORY : Principal judgment
Armstrong v East West Airlines (Operations) Ltd, 3 February 1994, 3303 of 1990 – BC 9402253 Canson Enterprises Ltd v Boughton & Co (1991) 85 DLR (4th) 129 Hagan v Waterhouse (1991) 34 NSWLR 308 Harrison v Schipp [2001] NSWCA 13 CASES CITED : Nobrega v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney No 2 [1999] NSWCA 133 – BC 9902730 O'Halloran v RT Thomas & Family Pty Ltd 45 NSWLR 262 SMEC Testing Service Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Southern Cross Commodities Pty Limited v Ewing (1987) 11 ACLR 818 Target Holdings Ltd v Redferns [1996] 1 AC 421 The Public Trustee & Anor v Cooper & Ors [2001] WTLR 901
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