Folmer v VicSuper Pty Ltd & Anor [2018] NSWSC 1503

Supreme Court New South Wales

Medium Neutral Citation: Folmer v VicSuper Pty Ltd & Anor [2018] NSWSC 1503 Hearing dates: 27 – 28 June 2018 Date of orders: 10 October 2018 Decision date: 10 October 2018 Jurisdiction: Equity Before: Hallen J Decision: The Court:

(a) Directs the parties to bring in Short Minutes of Order to give effect to these reasons.

(b) Lists the proceedings for mention for any argument on interest, costs, or other consequential issues, on a date to be arranged at the date of the publication of these reasons.

(c) Grants liberty to apply. Catchwords: INSURANCE — TPD insurance — Plaintiff was member of superannuation fund — Trustee of fund (first Defendant) effected Group policy insurance — Insurance policy with Insurer (second Defendant) — Insurance providing benefits upon total and permanent disablement of member — Plaintiff claims she is totally and permanently disabled after being off work for six months — Trustee declined the Plaintiff's claim — Duty on a trustee of a superannuation fund in determining a claim for a total and permanent disablement benefit — Whether Trustee breached obligations to Insured — Plaintiff not pursuing claim against Trustee by end of the hearing, accepting claim against Trustee to be dismissed

INSURANCE — Where contract of insurance — Where Plaintiff claimed that she had suffered total and permanent disablement — Whether totally and permanently disabled benefit payable if Insured proved to the satisfaction of Insurer that she was so incapacitated as to be "unable ever again to work for reward in any business, occupation, or regular duties for which she is reasonably qualified by education, training or experience" — Where insurer denied claim on the basis the claim did not satisfy the definition of TPD — Whether Insurer acted reasonably in considering the claim — Utmost good faith — Whether Insurer breached duty of utmost good faith and fair dealing — Whether Plaintiff totally and permanently disabled within the meaning of the relevant insurance policy — Plaintiff challenges decisions of the Insurer