Stevens v Colonial Mutual Life Assurance Society Ltd & Commonwealth Financial Planning Ltd [2012] NSWDC 94

District Court New South Wales

Medium Neutral Citation: Stevens v Colonial Mutual Life Assurance Society Ltd & Commonwealth Financial Planning Ltd [2012] NSWDC 94 Hearing dates: 29, 30, 31/05/2012, 01, 04 & 08/06/2012; final written submissions 22/06/2012 Decision date: 03 July 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the first defendant on the plaintiff's claim against that defendant; 2.The plaintiff is to pay the first defendant's costs; 3.Verdict and judgment for the plaintiff against the second defendant, including interest up to the time of judgment, in the total sum of $311,128.04; 4.The second defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless otherwise ordered, such costs to include the costs the plaintiff is liable to pay to the first defendant pursuant to order 2 above; 5.The exhibits may be returned; 6.Liberty to apply on 7 days notice if further orders are required. [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: CONTRACT - life insurance - whether material non-disclosure by proponent justified insurer avoiding the policy - whether the financial planner who assisted the plaintiff to submit his proposal relevantly breached a duty of care or engaged in misleading or deceptive conduct at the time the policy of insurance was effected knowing it was to replace a valid pre-existing policy - causation of loss - whether plaintiff is entitled to damages Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cwth), s 12DA(1), s 12GF(1) Corporations Act (Cwth) 2001, s 1041H(1) Civil Liability Act 2002, s 5B, s 5D Insurance Contracts Act 1984 (Cwth), s 21(1), s 26(1), s 29(3) Cases Cited: Browne v Dunn (1894) 6 R 67 CGU Insurance Ltd v Porthouse [2008] HCA 30 Davis v Westpac Life Insurance Services Ltd [2007] NSWCA 175 Mason v Demasi [2009] NSWCA 227 Permanent Trustee Australia Limited v FAI General Insurance Company Ltd (in liq) (2003) 214 CLR 514 Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2008] HCA 52; (2008) 219 CLR 165 Category: Principal judgment Parties: Noel Stevens (Plaintiff) Colonial Mutual Life Assurance Society Ltd (First defendant) Commonwealth Financial Planning Ltd (Second defendant) Representation: Mr D Campbell SC with Mr S Longhurst (Plaintiff) Mr M Jones SC (Defendants) RMB Lawyers (Plaintiff) Henry Davis York (Defendants) File Number(s): 2012/132876 Publication restriction: None