Watson v Hannover Life Re of Australasia Limited [2018] NSWSC 877

Supreme Court New South Wales

Medium Neutral Citation: Watson v Hannover Life Re of Australasia Limited [2018] NSWSC 877 Hearing dates: 12 June 2018 Date of orders: 12 June 2018 Decision date: 12 June 2018 Jurisdiction: Equity Before: Hallen J Decision: See Paragraph 51 Catchwords: PRACTICE AND PROCEDURE - Non-appearance by the Plaintiff at the hearing - UCPR rule 29.7 -Application by Defendants for dismissal of proceedings - No explanation for Plaintiff's absence – Evidence that Plaintiff aware of the hearing - Proceedings dismissed Legislation Cited: Superannuation Industry (Supervision) Act 1993 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Lezaja v Hannover Life Re of Australasia Ltd (No 2) [2016] NSWSC 167 NSW Trustee and Guardian as executor of the Will of Michael Robert Walsh (Dec'd) v Gregory (2012) 18 BPR 35,153; [2012] NSWSC 681 Category: Principal judgment Parties: Shaun Roy Watson (Plaintiff) Hannover Life Re of Australasia Limited (first Defendant) United Super Pty Limited (second Defendant) Representation: Counsel: Ms B Nolan (Defendants)

Solicitors: Turks Legal (Defendants) File Number(s): 2016/50017

Judgment – EX TEMPORE REVISED

Introduction 1. HIS HONOUR: The Plaintiff, Shaun Roy Watson, was working as a qualified boilermaker/welder on 14 September 2013, when he was injured, in the course of his employment with Allmen Engineering Projects Pty Limited ("the Employer"). He had commenced working with the Employer in about mid-October 2012. 2. United Super Pty Limited, the Second Defendant ("the Trustee") is the trustee of the Construction and Building Union's Superannuation Fund ("the CBUS Fund") constituted by a Trust Deed, relevantly dated 12 December 2012 ("the Trust Deed"), which provided for certain benefits to members of the CBUS Fund, including, in certain events, a total and permanent disablement benefit. It exercises its trustee functions pursuant to the Trust Deed, as amended from time to time. 3. Hannover Life Re of Australasia Ltd, the first Defendant ("the Insurer") is an insurer, which entered into a Group Life Insurance Policy, bearing Policy number 4163, ("the Policy"), with a commencement date of 1 April 2002, which was varied with effect from 1 December 2011, with the Trustee, pursuant to which, in return for the Trustee agreeing to make certain payments to the Insurer, the Insurer agreed to insure members of the CBUS Fund against, amongst other things, total and permanent disablement. 4. The Trustee was the legal owner of the Policy and held the Policy for the benefit of members of the CBUS Fund. 5. The Plaintiff became a member of the CBUS Fund on 1 July 2013. He claimed that he ceased work as a consequence of the injuries suffered at work on 14 September 2013, when a 1.5 tonne steel beam landed on his left foot, crushing it. On presentation to the Nepean hospital, it was recorded that there was "a partial amputation of the left lateral foot with exposed tendons and bones and multiple comminuted fractures of the 3rd, 4th and 5th metatarsal bones, a gross displacement of the 5th metatarsal, with the metatarsal shaft displaced laterally, inferiorly and proximally". 6. The Plaintiff asserted that as a result of the injuries and disabilities sustained by him, he has been unemployed since the date of the incident. It is not disputed that he remained continuously unemployed for a three month period until 14 December 2013. He claimed that, since then, he has been disabled, and that after that three month period, he qualified as being "totally and permanently disabled" within the provisions of the Policy from 14 September 2013.