Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd [2011] NSWCA 204

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Manglicmot v Commonwealth Bank Officers Superannuation Corporation Pty Ltd [2011] NSWCA 204 Hearing dates: 10 March 2011 Decision date: 27 July 2011 Before: Giles JA at [1], Young JA at [164], Whealy JA at [165] Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: INSURANCE - trustee of superannuation fund took out insurance providing benefits upon total and permanent disablement of members (TPD) - entered into new policy with different insurer - member of fund unfit for full time work but fit for part time work - member alleged old policy provided TPD benefits if fit for fulltime work but new policy did not and so provided lesser benefits - whether new policy provided lesser TPD benefits than old policy - no consistent course of construction or application of wording - old policy did not provide TPD benefits if fit for part time work EQUITY - as above - member alleged breach of fiduciary duty owed by trustee to members or of duties owed pursuant to covenants in ss 52(2)(b), (c) Superannuation Industry (Supervision) Act 1993 (C'th) - alleged breach because new policy provided lesser TPD benefits than old policy - no breach because no lesser TPD benefits - no meaningful challenge to trial judge's finding that in any event trustee did not err in exercising discretionary power in entering into new policy - covenants in Superannuation Industry (Supervision) Act did not materially add to trustees general law duties - member otherwise not entitled to TPD benefits because unemployment not shown to be due to sickness, illness or injury Legislation Cited: Superannuation Industry (Supervision) Act 1993 (C'th) Cases Cited: Alcoa of Australia Retirement Plan Pty Ltd v Thompson [2002] FCA 256; (2002) 116 FCR 139; Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173; Beverley v Tyndall Life Insurance Co Ltd [1999] WASCA 198; (1999) WAR 327; Camilleri v Australian Casualty & Life [2006] NSWDC 77; Chammas v Harwood Nominees Pty Ltd (1993) ANZ Ins Cas 61-175; Finch v Telstra Super Pty Ltd [2010] HCA 36; 271 ALR 236 at [18]-[26]; Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94; Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Ltd [2006] 15 VR 87; Riley v The National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Ins Cas 60-684; Nile v Club Plus Superannuation Pty Ltd [2005] NSWSC 55; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945; Szuster v Hest Aust Ltd [2000] SADC 2; Tuftevski v Total Risks Management Pty Ltd [2009] NSWSC 315; re Whiteley (1886) 33 Ch D 347; Wyllie v National Mutual Life Association of Australasia Ltd (1997) 217 ALR 324. Texts Cited: Jacob's Law of Trusts in Australia, 7th ed, at [2921]-[2922] Category: Principal judgment Parties: Roy Manglicmot - Appellant Commonwealth Bank Officers Superannuation Corporation Pty Ltd - Respondent Representation: B W Rayment QC & M Bleazel - Appellant A Bell SC & J English - Respondent Firths - Appellant Henry Davis York - Respondent File Number(s): CA 2008/282210 Decision under appeal Citation: [2010] NSWSC 363; (2010) 239 FLR 159; Date of Decision: 2010-04-28 00:00:00 Before: Rein J File Number(s): 2008/282210