FEDERAL COURT OF AUSTRALIA

Ravesi v National Australia Bank Limited [2014] FCA 99

THE COURT ORDERS THAT:

1.    There is to be judgment in favour of the plaintiff against the first and second defendants in the sum of $110,460.

2.    The claim against the third defendant be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BACKGROUND

1    The plaintiff, Paul Ravesi, is a little over 45 years of age. After leaving school, he obtained an Economics Degree and qualified as a Chartered Accountant. He worked as an accountant for some years, and then for a time as a hotel operator.

2    From 2002-2005, he worked as Financial Controller/General Manager at Millenium Business Solutions (MBS), a business which supplied, installed and serviced computer networks. He then negotiated through a company Affinity Resources Pty Ltd (Affinity), incorporated in February 2006, to buy the benefit of a number of contracts of MBS. Affinity then conducted that business under the name Millenium Technology.

3    Mr Ravesi and Candace Torres, who had worked with the Mr Ravesi at MBS, became the directors of Affinity. Mr Ravesi and Ms Torres were also living together as partners by this time.

4    In July 2006, through Mr Ravesi, Affinity secured an overdraft facility of $50,000 from the first defendant, National Australia Bank Limited (NAB). In the course of that negotiation, it was suggested to Mr Ravesi that he might consider taking out some form of insurance to protect himself and Ms Torres in the event that either of them suffered a serious illness or accident. Mr Ravesi was recognised as a key person to the business of Affinity. At the same time, it was either suggested or required by NAB that the borrowing of Affinity from NAB should be secured or supported by some insurance on the life of each of them.

5    Mr Ravesi and Ms Torres were referred to the second defendant, Peter Moore, a financial services adviser employed by NAB to discuss their circumstances in relation to insurance.

6    Mr Moore met Mr Ravesi and Ms Torres on 11 August 2006 and on one or two subsequent occasions. Ultimately, on 28 September 2006, Mr Ravesi signed an application for insurance submitted to the third defendant, MLC Limited (MLC). Ms Torres signed her application in early October 2006, although it is dated 29 September 2006.

7    MLC issued the following policies:

(1)    Policy No 1906-9590N issued on 30 November 2006 in favour of Affinity, on the life of Mr Ravesi, and providing life cover standard of $150,000 and critical illness plus cover including total permanent disability cover of $140,000. The same policy covered the life of Ms Torres for both life cover and critical illness plus cover including total permanent disability cover in the sum of $100,000 each;

(2)    Personal protection policy No 1906-9591Y issued on 13 December 2006 in favour of Mr Ravesi with individual benefits as specified, namely income protection plus cover of $3750 per month, with a waiting period of one month and a maximum benefit period of five years;

(3)    Personal protection policy No 1906-9592K issued on 13 December 2006 in favour of Ms Torres, with benefits as specified, namely life cover standard of $200,000 and critical illness plus cover including total permanent disability cover of $200,000 and income protection plus of $3750 per month, also with a waiting period of one month and a maximum benefit period of five years.

8    The terms of those policies are quite clear from the schedules to the three policies. Letters to Ms Torres and to Mr Ravesi were sent on 14 December 2006, in respect of cover to commence on 13 December 2006 enclosing those schedules. The letter to Affinity was sent on 1 December 2006 in respect of its cover to commence on 30 November 2006, enclosing its schedule. It is convenient to refer to the “Critical Illness Plus” including total permanent disability cover as TPD cover in this judgment for reasons which will be apparent.

9    It is quite apparent, by looking at the schedules to the policies issued to Mr Ravesi and Ms Torres, that her cover personally was not restricted to income protection cover, but included $200,000 each for life cover and for TPD cover whereas Mr Ravesi’s policy was confined to income protection cover only.

10    MLC on 9 November 2007 wrote to Mr Ravesi enclosing a replacement schedule with an up to date summary of the structure and amount of his benefits and premiums. The enclosed schedule referred to the policy issued to him, and again indicated that the benefit was confined to income protection and that had been indexed so that his income protection cover was then $3829 per month.

11    He received a further replacement schedule under cover of a letter of 8 November 2008 from MLC indicating that the individual benefit details under his policy were confined to income protection and by then was for the (indexed) sum of $4001 per month.

12    Unfortunately, on 10 December 2008 Mr Ravesi was severely injured in a car accident. It is not necessary to refer to the circumstances in any detail. Mr Ravesi gave notice of the accident to MLC on 12 December 2008. He subsequently made a claim on 12 February 2009. His claim for income protection was duly met, although the extent of his disability was difficult to predict longer term. Subsequently, an issue arose as to the extent to which he was entitled to income maintenance payments under the policy, having regard to the acceptance of his claim to workers compensation for the injuries he had received in the accident. There is now no issue in this proceeding as to the administration of that policy.

13    It is also now accepted that MLC issued the policies as directed by Mr Moore through NAB, by passing to MLC the two applications for insurance of 28 and 29 September 2006 with the supporting documents.

THE ISSUES

14    What is primarily in issue is whether, as Mr Ravesi claims, he should be entitled to damages on the basis that he should have received a policy in his name and for his personal benefit of $140,000 for TPD. Such insurance cover, that is life cover of $150,000 and TPD cover of $140,000 had been recommended by Mr Moore to Mr Ravesi, and Mr Ravesi says he accepted that recommendation. There is a subsidiary issue as to whether either Affinity or Mr Ravesi should also have been advised to obtain business expenses insurance.

SOME OBSERVATIONS

15    As one might expect, much of the material upon which the Court has been asked to make a determination on those questions is uncontentious.

16    The client adviser file conducted by Mr Moore has been made available, in its original form, and with one qualification. The relevant primary documents have been made available. For some reason, an email of 29 September 2006 which Mr Moore says he sent to Ms Torres on that date is not available in its original form. No satisfactory explanation for it being missing can be proffered, but it is simply missing. Its content is apparent from the client contact file notes maintained by Mr Moore, on a running basis, and into which he “dropped” a copy of that email. I accept that it was sent in the terms there recorded.

17    It is also appropriate at this point to make some general observations about the evidence. The critical evidence was given by Mr Ravesi and Ms Torres, and then by Mr Moore. I accept that each of them was endeavouring to provide reliable and truthful evidence. Obviously, their respective versions of particular conversations critical to the outcome of this proceeding are a little different.

18    Where she had a memory of relevant events or conversations, I accept the evidence of Ms Torres. She impressed me as a cautious witness, who was anxious not to reconstruct but simply to provide evidence of her precise recollection of events. As they occurred now some years ago, there were occasions where she did not recall events in any detail or with any precision and she made that plain. On occasions she did speculate or reconstruct what she thought had occurred, but when she was doing that, she made it plain that that is what she was doing. Moreover, it is fair to say that she was particularly careful not to merge her reconstruction where she had no memory with those events of which she had a memory, either directly or prompted by reference to documents. As an example, she recalled three meetings with Mr Moore, but she accepted readily that the dates she attributed to those meetings was reconstructed from documents, and that her initial evidence as to those dates was incorrect.

19    I also accept that Mr Ravesi was a truthful witness. It is difficult to make an assessment of the reliability of his evidence where it is not confirmed by other evidence. That is simply because, as he himself acknowledged, he is a somewhat different person as a result of the head injuries he received in the accident in December 2008. Although he conducted his claim in person, there were times when he did not focus fully on the real issues in dispute, and there were times when the line of his evidence, or questioning of Mr Moore, appeared to be not entirely relevant. I did not have medical evidence from which I could assess the extent to which the way he presented, somewhat impulsively, and without a capacity to maintain a sustained and cogent level of concentration over a lengthy period, reflected his pre-accident personality. I have therefore been careful not to take the way in which he presented during the course of his evidence and in the conduct of the case as indicative of his attitude or manner of behaviour or characteristics prior to his accident. There is no medical evidence to provide information on that topic, but both he and Ms Torres accepted that he is a significantly different person now as a result of the head injuries he sustained. I accept that he firmly believes that his instruction to Mr Moore was to accept Mr Moore’s recommendations, including the cover which he expected, and that he did not change those instructions. I am confident that is his recollection. Moreover, based upon the evidence of Ms Torres and himself, I am satisfied that that was in fact the case in the course of their various discussions with Mr Moore leading up to the critical document on 28 September 2006. On the other hand, on matters of precise detail, such as the circumstances in which that critical document came to be signed, it is obvious to me that Mr Ravesi could not reliably recall that occasion with the degree of specificity necessary to give his evidence cogent weight. He says, for example, that he would not have signed a document such as that where the relevant boxes were not all ticked. Nevertheless, he has signed the document. He suggests he signed it when it was incomplete. That is, when it had not been filled out at all. It may be that he was rather busy at the time of this transaction and relied heavily upon Mr Moore. I simply do not know. However, I do not feel confident enough in his evidence to accept it in preference to cogent evidence to the contrary except in the limited respects to which I make specific findings or where what he says is supported by the evidence of Ms Torres.

20    Mr Moore also impressed me as a careful witness. I think it emerged in the course of his evidence that, to a significant degree, he had little memory of the precise detail of his communications with Mr Ravesi and Ms Torres other than as they are recorded in written documents. In particular, apart from his notes, he said he had only a vague recollection of the critical meetings of 12 and 28 September 2006. He accepted the possibility that there may have been some misunderstanding between himself and Mr Ravesi as to Mr Ravesi’s instructions. He followed his normal procedure. I am sure that he now firmly believes that he was instructed by Mr Ravesi that Mr Ravesi did not require the lump sum policy cover which is in dispute.

21    With those observations, it is now convenient to record the dealings between Mr Ravesi, Ms Torres and Mr Moore. They represent my findings on those matters save for the occasion when Mr Ravesi on 28 September 2006 told Mr Moore what his instructions were in the light of Mr Moore’s recommendations. Those findings are discussed in more detail and recorded more explicitly.

22    They first met on 11 August 2006, as a form of introductory meeting. Mr Moore learned that Mr Ravesi and Ms Torres were business and life partners, and a little about their experience and background. He took some personal particulars. Mr Moore agreed to prepare some recommendations for both Mr Ravesi and Ms Torres for insurance and business superannuation.

23    He also made some provisional observations to them, based upon the income they were receiving from Affinity, as to the sort of cover for insurance they might look at. His notes record that the topics discussed included death cover, to meet debts otherwise payable by him or her, funeral expenses and the like. In his notes, “TPD” is for total permanent and disability cover which may be for business or personal protection, “CI” means critical illness cover to receive a lump sum if there is a critical condition producing significant disability, and finally “TTD” is total and temporary disablement and is the focus of income protection insurance on a monthly basis. He discussed capital required under the potential policies to meet personal debts, and to ensure the cash injection required to enable the business to carry on whilst securing a replacement for the loss of key personnel in the business covering both the cash flow maintenance and costs of securing a substitute person. It was apparent that Mr Ravesi was the key person to the business. Ms Torres’ contribution, whilst significant, was of a more administrative character and so more readily replaceable.

24    In the course of that meeting, Mr Moore elicited that the business had a $50,000 overdraft, as well as other business loans and mortgages totalling about $75,000. There was as noted some discussion about how much of a cash injection would be required to replace Mr Ravesi if he was unable to continue working, which should cover the salary of a replacement, together with recruiting costs and possibly an inducement cost (reaching a figure of $150,000). In addition, there was discussion as to the amount of personal indebtedness of Mr Ravesi, in the order of $40,000, which should be covered by a lump sum in addition to covering the debts of Affinity. Mr Ravesi and Ms Torres provided estimates of their income of $60,000 per year, and Mr Moore indicated that TPD cover for income protection was limited to 75% of that sum, and represented $3,750 per month.

25    There was some discussion about waiting periods before total disability payments were receivable. There was some discussion about how long such income maintenance payments should be payable, that is up to age 65, to death, or to some other time. There was some discussion about the amount of a lump sum which both Mr Ravesi and Ms Torres would need if they were each to receive an annual income of $60,000 per year to either retirement or death. It was a straightforward discussion based upon a lump sum being invested in an interest bearing deposit in a bank to meet the possible future benefits or protection desired.

26    Mr Moore also completed a document entitled “Business Fact Find and Needs Analysis” of the bank. It is a pro forma document with personal details inserted. He made some entries in it in the course of a meeting on 11 August 2006, although he may have received some information incorporated into it from the bank officer who had referred Mr Ravesi and Ms Torres to him. It is largely incomplete. It contains some estimates, provided by Mr Ravesi, and Ms Torres, of their respective assets and liabilities. It noted that the bank overdraft of $50,000 had been supported by a third person.

27    Mr Ravesi was insistent that that version of that document was not seen by him. Mr Moore does not say that he did show it to Mr Ravesi, but used it as a personal working document. There is no dispute about that. Nothing turns on that factual issue.

28    Following that meeting, Mr Moore completed a document on 14 August 2006, ultimately provided to Mr Ravesi on 24 August 2006. It is entitled “Fact Find and Needs Analysis for Paul Ravesi”. It has printed on it, but I find added later (based on the MLC policy numbers) the two policy numbers for Affinity and Mr Ravesi.

29    Mr Ravesi is shown as a business owner/key employee. On the sheet headed “Asset Protection Planner” intended to assess the amount the business would require to preserve its asset base after a disabling event suffered by Mr Ravesi, that is to pay or reduce debts, maintain adequate funds to operate, and maintain credit standing if a business owner dies or becomes disabled, there are entries in type, one of which has subsequently been altered in handwriting. The typed entries were put into the completed version of that document by Mr Moore. The handwriting adjustment is to the business loan/mortgage amount required to be protected by insurance. It has been reduced from $75,000 to $50,000 and the consequential calculation of total asset protection needed, and of shortfall in asset protection in each case reduced from $125,000 to $100,000. The other amount constituting that total is the overdraft of $50,000. There is also an assessment of the amount required to provide Mr Ravesi’s family with sufficient cash to maintain their lifestyle in the event of his premature death. That amount is quantified at $50,000 representing Mr Ravesi’s outstanding debts and funeral expenses on his death. In the case of TPD, that amount is quantified at $40,000, simply to reflect that no funeral expenses are required. The income protection planner document or sheet refers to annual before tax earnings of $60,000, and the desire to have the 75% of those earnings per month of $3750 payable to aged 65 and to be indexed. There is a critical illness protection planner, aimed to ease financial stress during recovery from a critical illness. In Mr Ravesi’s case, that is to cover his then personal debt of $40,000. The next sheet entitled “Priority rating of protection needs” gives critical rating to asset protection for the business, revenue protection for the business, family protection for the family on his death, and family protection for him and his family in the event of total and permanent disability, as well as income protection and critical illness protection for himself. The other categories of ownership protection and business expenses protection for himself and for the business respectively are rated as not a priority, with the comments that there were no unrelated business owners and that business expenses protection is unnecessary because the business would continue to trade and meet expenses that way.

30    In final submissions, Mr Ravesi complained that he had not been advised about the benefits of taking out business expenses protection. I do not accept that that is the case. There is no reason why Mr Moore would have completed that form containing that low priority for business expenses protection without having, at least, discussed it with Mr Ravesi and Ms Torres. Ms Torres did not recollect any conversation on that topic, but did not dispute that such a conversation may have taken place. That is consistent with my assessment of her careful way in which she answered questions and of her truthfulness in doing so. In addition, it is correct to say that there were no other capital interests in Affinity than those of Mr Ravesi and Ms Torres, and they discussed with Mr Moore that in the event of Mr Ravesi suffering an incapacitating injury or illness the business would be carried on by securing a replacement for his personal contribution. I accept Mr Moore’s evidence on that topic, which he said was a real recollection and, in the circumstances, a sensible expense. The issue of business expenses insurance was not formally raised again. Consequently, I reject Mr Ravesi’s criticism of Mr Moore that he was not properly advised about business expenses insurance.

31    The file of Mr Moore also contains a Customer Acknowledgment sheet signed by Mr Ravesi and dated 24 August 2006 in which he acknowledges having read NAB’s Financial Services Guide prior to obtaining advice or recommendations. Mr Moore said that that document (which appears as page 13 of the 13 pages of the Fact Find and Needs Analysis for Paul Ravesi document) means that he was given the whole of that document. I do not need to determine whether or not that is correct. Mr Ravesi says he did not receive the earlier pages. Nothing turns on that other than the dispute about the business expenses insurance which I have determined adversely to Mr Ravesi.

32    The next document is entitled “Statement of Advice”. It contains the recommendations in writing of Mr Moore to Mr Ravesi. It reflects the fact, as Mr Moore accepted, that neither Mr Ravesi nor Ms Torres had at the time of consulting him any life insurance and that they wished to secure advice from him as to appropriate levels of cover to protect both the business of Affinity and themselves personally.

33    The Statement of Advice is dated 25 August 2006. It was provided to Mr Ravesi, although it is not clear precisely when that occurred.

34    The document, although apparently prepared beforehand in some form ultimately was the subject of a telephone discussion on 17 August 2006 between Mr Moore and Ms Torres to seek a little more information and to arrange a time for a meeting. Apparently a meeting was scheduled for 24 August 2013 but did not take place.

35    The Statement of Advice dated 25 August 2006 is a document of 19 pages. The critical parts record the information provided by Mr Ravesi, and his agreed protection insurance objectives which are as follows:

Asset Protection

You and your fellow business owners wish to provide the business with $125,000 to preserve its asset base, ie to repay/reduce debts, free up cashflow and maintain its credit standing, if you die or become disabled.

Revenue Protection

You and your fellow business owners wish to provide the business with $150,000 to compensate for the loss of revenue and associated replacement costs, if you die or become disabled.

Family Protection – Death

You would like to provide your family with a lump sum of $50,000 to help maintain their lifestyle in the event of your premature death.

Family Protection – TPD

You would like a lum sum of $40,000 to help maintain your/your family’s lifestyle in the event of your total and permanent disability.

Critical Illness Protection

You would like a lump sum of $40,000 to ease financial stress during the recovery period following your diagnosis of a critical illness.

Income Protection

You would like to protect your/your family’s lifestyle by replacement income lost through your inability to work due to injury or sickness.

36    After some pages of what appears to be pro forma or standard material, under the heading “Strategy Recommendation”, the following heading appears: “Protection Insurance Recommendation”. Under that heading, Mr Moore has recommended cover for Mr Ravesi as follows:

37    In short, relevantly Mr Moore recommended that:

(1)    Affinity take out a policy insuring the death or TPD of Mr Ravesi of $150,000; and

(2)    Mr Ravesi take out a policy insuring his death or TPD for $175,000 and $165,000 respectively (the difference being explained by the need for funeral expenses incurred if he were to die) and for income maintenance of $3750 per month.

38    There is then a section discussing the benefits of the insurance recommendation. It explains out the regular monthly income benefit of $3750 payable after one month, a death cover under which the business would receive a lump sum of $150,000 to replace lost revenue and secure a suitability qualified replacement, and under which Mr Ravesi’s estate would receive a lump sum of $175,000 to provide sufficient capital to cover his funeral expenses and repayment of outstanding business and personal debts of $165,000.

39    It also discusses the TPD cover under which Affinity would receive a lump sum of $150,000 to compensate for lost revenue and the costs of securing a suitably qualified replacement, and Mr Ravesi personally would receive a lump sum of $175,000 to provide sufficient capital to cover repayment of outstanding business and personal debts of $165,000. It specifically makes a point that that is in addition to the income maintenance amount.

40    Finally, there is a sub-heading for Critical Illness Cover which explains that, in that event, the business would receive a lump sum of $150,000 to replace lost revenue and to secure a suitably qualified replacement, and Mr Ravesi would receive a lump sum of $40,000 to ease financial stress during the recovery period, essentially to cover the payment of outstanding personal debts. It points out that he would also receive a replacement income of $3750 per month during that period.

41    Those recommendations are also reflected in a two page Product Recommendation presented in a tabular form. It recommends two policies. Policy 1 was to ensure Mr Ravesi’s life for his own benefit, that is as owner of the policy, to give him asset protection for life cover of $125,000 and critical illness cover of $125,000 including TPD, and family protection for life cover of $50,000 and critical illness cover including TPD of $40,000 (making up the sums of $175,000 and $165,000 respectively) as well as income protection. Policy 2 was to ensure his life in favour of Affinity, for a sum of $150,000 and for critical illness/TPD for the same amount. The total cost of the protection insurance claim is then specified.

42    That document is signed by Mr Moore.

43     In those slightly different ways, the recommendation is clear and unequivocal.

44    Pages 18 of 19 of the Statement of Advice are headed “Authority to Proceed”. That Authority has the policy number 1906-9591Y stamped on it (I find added later when MLC issued the policy) and handwritten on it is policy number 1906-9590N. That is the document about which Mr Ravesi disputed the circumstances in which his signature appeared on it. It is dated 28 September 2006.

45    That Authority, by its pro forma terms, records that Mr Ravesi acknowledges having read the Statement of Advice and related documentation of 25 August 2006, which in turn is based upon information in the Fact Finder Needs Analysis completed by Mr Moore, and “available to me on request”. It acknowledges that changes to the information that the recommendations are based on may affect the recommendations. One section is an acknowledgment that the adviser had explained the need to review the insurance plan, and the pro forma includes a request for that review with three alternatives (one to be selected): annually/some other regular period/or as notified to the adviser. None of those alternatives are marked. There are also two boxes allowing either for acceptance of the recommendation and authorising its implementation, or agreeing to proceed on the condition that the recommendation is varied in a certain way. The second alternative allows for the expression of the variation. That alternative has been ticked (I find by Mr Moore) and Mr Moore has written in that box:

Key person revenue insurance $150,000 Death $140,000 TPD plus CI

Income protection as recommended.

No reference is there made to the beneficiary of the “key person revenue insurance”. It is not an expression used in the critical elements of either the Fact Find and Needs Analysis or, more importantly, in the Statement of Advice itself. There is no express comment in that section of the document indicating whether all of the recommended Policy 1 is to be adopted and none of the recommended Policy 2, or which combination of the recommended policies are accepted.

46    In the tabular presentation of the Product Recommendation referred to at [41] above, Policy 2 is also referred to as Revenue Protection with Affinity as the owner and Policy 1 is headed Asset Protection/Family Protection/Income Protection. By following or tracking the “Key person revenue insurance” wording in the Authority to proceed back to the Product Recommendation referred to in [41] above, it is apparent that it refers to the policy proposed in the name of Affinity, that is Policy 2. It did reflect a small change in the recommended Policy 2, reducing the TPD cover to $140,000.

47    It does not address expressly the Asset Protection/Personal Protection components in the Protection Insurance Recommendation for Mr Ravesi personally. Nevertheless, it was clearly understood by MLC to mean that Mr Ravesi did not accept that part of the recommendation. Mr Moore said that that is what the Authority conveys. There is no basis for concluding, in the circumstances, that MLC did not comply with that Authority. Mr Ravesi’s complaint is directed at how that Authority was expressed, rather than how it was implemented by MLC.

48    Accordingly, the claim against MLC must fail.

49    Mr Ravesi says that that part of the document was not filled in when he signed it. He says that he did not give instructions that he did not want the Asset Protection/Personal Protection component of Policy 1 for death or TPD. He wanted to secure that protection. Mr Moore said that that instruction was given.

50    There was no evidence to suggest any reason why Mr Ravesi might have given the instruction that he did not require the Asset Protection/Personal Protection cover of Policy 1 as recommended. It was not suggested to him that, for example, he was anxious to reduce costs for cash flow problems or for any other reason that he might not want that sort of cover. Mr Moore did not say that he asked for any explanation for why his advice was not accepted. In fairness to him, he does not recall the detail of the conversation at which he says that instruction was given. He simply says that, in accordance with his usual practice, he accepted that instruction. He would not have raised the question of why his recommendation was not accepted. As noted, he did not write that the instruction given was to exclude Asset Protection/Personal Protection as recommended. That is, he says, implicit in what he has written down. That is also consistent with his email to Ms Torres of 29 September 2006.

51    Although I have pointed out that, so far as the evidence discloses, no reason apparently exists for Mr Ravesi not accepting the recommendation, nor any discussion suggested to that effect either between himself and Ms Torres or between himself and Mr Moore, equally there is no apparent reason why Mr Moore might have had any interest in, or reason for, excluding the Asset Protection/Personal Protection elements of his recommendation. He was to receive his commission on the insurance as written. Put simply, he said that having given such advice as he had given to Mr Ravesi, his practice was then to adopt what the client’s decision was without questioning it or seeking to discuss it at all.

52    Before addressing the critical issue about the instruction which was given, it is convenient to consider what happened in the case of Ms Torres.

53    In the case of Ms Torres, the Statement of Advice is also printed as prepared on 25 August 2006. It is not necessary to refer to that document in detail except to note that in her case the Protection Insurance Recommendation included Asset Protection on death or TPD of $125,000, with the beneficial owner Ms Torres (or Mr Ravesi in the case of her death), Revenue Protection of $110,000 on death or $100,000 on TPD with the beneficial owner Affinity, and Personal Protection on death of $50,000 and on TPD of $40,000, plus $3750 per month with the policy owner, Ms Torres. It explains that in the event of her death the business would receive a lump sum of $110,000 to replace lost revenue and secure a suitably qualified replacement, and her estate would receive $175,000 to provide capital to cover funeral expenses and repayment of outstanding business and personal debts. The TPD cover was to repay the outstanding business and personal debts of $175,000 as well as getting income maintenance. The critical illness cover was to receive a sum of $40,000 to ease financial stress to repay a personal debt, together with the income maintenance protection. The tabular Product Recommendation is for two policies in similar terms to that for Mr Ravesi except, in her case, the starting point is Policy 1 for the Asset Protection for life and for TPD of $125,000 and for Personal Protection $50,000 and $40,000 respectively, together with income protection of $3750 per month, and in the case of Policy 2 to be owned by Affinity is for $110,000 for life cover and $100,000 to TPD cover.

54    In the case of Ms Torres, the Authority to Proceed document is similarly incomplete apart from the section with the agreement to proceed: the box ticked shows that she is to proceed on the condition that the recommendation is varied, and is signed and dated 29 September 2006 by Ms Torres. In her case, Mr Moore has written into the box for adoption of the recommendation with variation the following:

Key Person revenue protection         $100,000

Personal protection            $200,000, including TPD and CI

Income protection as recommended

As can be seen, therefore, the protection intended for Affinity, the “Key Person” revenue protection has been reduced in the case of life cover from $110,000 to $100,000 and the Asset Protection/Personal Protection has been increased from $175,000 to $200,000. The explanation for that, on the evidence, is that it is a change discussed between Ms Torres and Mr Moore because Ms Torres had taken on an additional personal liability as a guarantor to a third party.

55    There was a further meeting before the meeting of 28 September 2006 to discuss the recommendations.

56    Mr Moore, as his diary note records, met again with Mr Ravesi and Ms Torres on 12 September 2006. He does not recall the detail of that meeting other than as prompted by his notes. The notes read as follows:

Went through recommendations, they wanted to read through SOA in detail. Also wanted to decrease asset protection on Paul and increase on Candace as she had signed a personal GTEE of $100k to suppliers. Asked me to send through revised quotes (done). Explained PDS and left them with one. They also have my copies of ATP [authority to proceed]. They will read through and get back to me. Know that there are applications to complete and I have prepositioned meeting them again to complete. Want to complete Super application then also. Left message for Anthony Hill to return my call to discuss super. Existing fund is MLC, but in the name of company that is not in existence [sic].

57    That is the reason for the change to Ms Torres’ Asset Protection/Personal Protection insured sum.

58    The contemporaneous records of Mr Moore as to the meeting on 12 September again are not contentious. It is common ground that the meeting occurred. Mr Ravesi, Ms Torres and Mr Moore discussed the two recommendations dated 25 August 2006. There is no suggestion that at that meeting Mr Ravesi said he did not want the Asset Protection/Personal Protection element of his personal policy as recommended. As Mr Moore’s note indicates, the only discussion on that topic suggests he wanted that cover, but with minor variations to the amounts.

59    Mr Moore says in his statement that they discussed decreasing the sum insured by Mr Ravesi from $125,000 to $100,000 for Asset Protection/Personal Protection as the estimated business loan mortgage was then said to be $50,000 rather than $75,000. That reflects the handwritten change referred to above in the Asset Protection Planner. His note records that everything else recommended in the Statement of Advice to Mr Ravesi was to stay the same. He was to prepare a revised Personal Protection portfolio quotation to reflect the variation.

60    In the case of Ms Torres, her decision, as a result of that meeting, was to increase the sum insured for life cover from $175,000 to $250,000 and for CI and TPD from $165,000 to $240,000. That flowed from Ms Torres giving the personal guarantee to a supplier to the business for $100,000. That also flowed from Ms Torres and Mr Ravesi changing their estimate of the business/loan mortgage from $75,000 to $50,000. On the Asset Protection planner page of the Needs Analysis prepared by Mr Moore, those changes are noted. The changes to the business loan/mortgage number are noted and consequential adjustments made, and under the heading “Other” is added “Personal guarantee/supplier $100,000”. He records that everything else recommended in Ms Torres’ Statement of Advice was to stay the same. He was to prepare a revised Personal Protection portfolio quotation to reflect the variations.

61    As a result of that meeting, Mr Ravesi was given by Mr Moore a revised Personal Protection portfolio quotation prepared on 12 September 2006. It constituted only three pages. It proposed life cover standard for him of $150,000, TPD and CI cover of $140,000, and income protection plus of $3750 per month. A similar document was prepared for Ms Torres based upon life cover of $250,000, CI and TPD of $240,000 and income protection plus of $3750.

62    Thus, by the meeting on 28 September 2006 when Mr Ravesi signed the Authority to Proceed, Mr Moore continued to recommend that Mr Ravesi take out a policy in his name for Asset Protection or life cover and TPD as well as a separate policy to protect Affinity. There had been no discussion to suggest he would not accept that recommendation; the contrary was the case.

63    The next step was to meet to arrange to complete the instructions and then, subject to the instructions, to procure the insurance. Mr Ravesi met with Mr Moore on 28 September 2006. On the evidence, it appears that Ms Torres was also present. Mr Moore’s evidence is that, at that meeting, Mr Ravesi signed the Authority to Proceed referred to above incorporating the changes. He says he was not surprised that Mr Ravesi requested at that meeting that he should remove the Asset Protection/Personal Protection component of from the policy to be owned by him. As I have noted, I find that he has no real recollection of his particular reaction to that because, as he said in the course of his evidence, he has no real recollection of these events beyond that which is recorded in his notes. The meeting was obviously somewhat hurried because it could not proceed to complete Ms Torres’ instructions. Mr Moore says that Ms Torres on 29 September 2006 met further with him and on that occasion instructed some minor changes to the level of life cover, following the meeting of 12 September 2006. It is also unclear whether that meeting took place before or after his email to Ms Torres of 29 September 2006, as its time cannot be ascertained as the original email is not available but only (as noted above) the copy of it maintained in his client contact file note. However, the note of 28 September 2006 says that he agreed to drop off necessary forms and provide Ms Torres with accurate new figures as the originals did not include their new debt position. That is not clear how that became necessary having regard to the revised quotation dated 12 September 2006 following the meeting of that date.

64    The email to her of the following day refers to his intention to drop application forms into her today, and a description of the revised insurance in the following terms:

Policy 1, owned by Paul to provide income protection, monthly premium $100.01

Policy 2, owned by Candace.

Death, TPD and CI benefit of $200,000 to clear debt and pay out guarantees, $29.47 monthly, income protection, $89.37 monthly. Total monthly cost for Policy 2 is $124.71 (includes $5.87 policy fee).

Policy 3, owned by Affinity Resources

Life insured Paul, benefits of $150,000 in the event of death, $140,000 TPD and CI, monthly premium $94.50

Life insured Candace, benefits $100,000, death, TPD and CI, monthly premium $19.72, total monthly premium for Policy 3 is $120.09 (includes $5.87 policy fee).

…

65    Mr Moore’s notes indicate that he spoke to Ms Torres on 4 October 2006 when she said she was completing the application for insurance and had some questions and would contact him the following day to meet, and that he met with Ms Torres on 5 October 2006 and went through the application with her before it was referred to MLC.

66    The email of 29 September 2006 included reference to the policy fee increasing from 2 October 2006, and therefore urging Ms Torres to complete the applications and sign them before that date. That may provide the explanation why Ms Torres’ Authority to Proceed document is dated 29 September 2006, even though there was no meeting with her on that day, and it appears from Mr Moore’s note that her instructions were finally given only on 5 October 2006. Nothing turns on that.

67    It may be observed that Mr Moore completed two Authorities to Proceed in slightly different ways. In Mr Ravesi’s case, he did not expressly write that the Asset Protection/Personal Protection was not to be pursued. Similarly, the Key Person protection (as it is called in the tabular form the Revenue Protection) had been reduced by $10,000 in the case of death. In Ms Torres’ case, both those topics had been the subject of change by instruction and the instruction reflected the change. In the case of Mr Ravesi, he had changed the revenue protection figure from $150,000 on death and $150,000 for TPD and CI to $140,000 for TPD and CI. That apparently simply reflects the difference in cost of funeral expenses. It is unclear whether that change was discussed at all with Mr Ravesi.

68    On 28 September 2005, Mr Ravesi says he did not instruct Mr Moore that he did not want Asset Protection/Personal Protection. Mr Moore simply says that he was told that Asset Protection/Personal Protection was not required and he accepted that.

69    I find it curious that Mr Moore simply accepted Mr Ravesi’s assertion, if it was made, that he did not require Asset Protection/Personal Protection cover. I have referred above to the absence of any reason why that change would have been made. Moreover, as between Mr Ravesi and Ms Torres, there was again no reason why such a change would have been made. Indeed, as the critical employee/director of Affinity (about which there was common ground between himself and Ms Torres), if there was to be any saving of cash flow, the logical thing was for Mr Ravesi to maintain the cover and Ms Torres to reduce her cover. Ms Torres, I am confident, would have recalled such a conversation. She did not do so. She said there was no such conversation. I accept that.

70    In addition, since Mr Moore was aware of the significant role of Mr Ravesi in the welfare of Affinity, I do not understand why he did not, as an adviser, question why that decision had been made. I understand his evidence to the effect that his practice was to give his advice (which he had done in writing and then at the meeting on 12 September 2006) and then simply to record and give effect to the instructions he was given. But, in circumstances such as those with which he was confronted, involving such a significant departure from his advice and the consequential significant exposure of Mr Ravesi to financial detriment if he were to become TPD by accident or illness, that practice was not an appropriate one. Moreover, it was a departure from his advice without any previous indication that in any significant respect his advice was questioned or that the cost of accepting his advice was too great. Even allowing for his usual practice, if such an instruction had been given by Mr Ravesi, I think Mr Moore would have reacted in some way. A cautious advisor was likely to have recorded such an instruction, being a significant departure from the advice, more fully than by the terms of the Authority to Proceed. When I first read it, I did not apprehend that it was in terms which excluded Asset Protection/Personal Protection cover for Mr Ravesi. A cautious advisor was also likely clearly to confirm the instruction in writing to Mr Ravesi. The email of the following day was not sent to Mr Ravesi. An explanation may lie in the fact that on 28 September 2006, he went through the document with Mr Ravesi and completed his application but did so under some time pressure and did not have time to deal with Ms Torres’ application.

71    Having regard to the documentary and oral evidence and the way I have assessed it, I find that Mr Ravesi on 28 September 2006 did not instruct Mr Moore that he no longer wished to pursue the Asset Protection/Personal Protection elements of the policy recommended in his name and for his benefit. As I have said, I accept that Mr Moore’s view is to the contrary, based upon the Authority to Proceed which he completed for Mr Ravesi. However, in my view his understanding probably reflects a failure of communication between himself and Mr Ravesi.

72    I have given reasons why I have reached that view, particularly having regard to my assessment of the evidence. I repeat that Ms Torres would be likely to have recalled if there was a significant change in the proposed level of cover made at the meeting on 28 September 2006. She obviously paid some attention to the detail of the figures, as demonstrated by the changes to the quotation which related to her personally discussed on 12 September 2006. There was no reason suggested in submissions, or explored in evidence to why the instruction to that effect would have been given by Mr Ravesi. Mr Ravesi and Ms Torres went to Mr Moore for advice. He gave them advice. They considered the advice contained in his quotation of 24 August 2006 and discussed it at the meeting on 12 September 2006. There were only minor changes to be made as a result of the reassessment of the debt of Affinity, and of Ms Torres taking on an additional personal liability to guarantee a liability of the company. It is specifically recorded at that meeting that there were no other changes to be made to the proposed recommendations. There was no discussion at that meeting that Mr Ravesi might not require Asset Protection/Personal Protection cover. There is no reason why, and no evidence to suggest, a change of mind might have occurred between 12 and 28 September 2006. Next, in the particular circumstances, in my view, it would have been natural for Mr Moore, as the adviser to Mr Ravesi and Ms Torres, to ask why Mr Ravesi had changed his mind on that aspect of his proposed policy between 12 and 28 September 2006 when there had been no previous suggestion of such a change, except as to matters of detail. It was a significant departure from the strategy which Mr Moore had proposed. He knew that Mr Ravesi was the key person to continue to operate Affinity.

73    That background includes the revised quotation to Mr Ravesi, no revised quotation to Affinity, no regenerated schedule showing the content of the proposed Policies 1 and 2, and the fact that the instruction sheet when written does not record or use the words in the recommendation to identify the particular policy being varied and in what terms. It also records my impression from the overall evidence that, despite their experience, Mr Ravesi and Ms Torres clearly relied on Mr Moore’s expertise and were prepared to adopt his recommendations subject to checking the quantification of the needs which he had identified as required to be covered.

74    On that basis, Mr Moore did not procure MLC to secure a policy for Mr Ravesi of the character which he sought. That was a failure to comply with instructions and a breach of contract. It being a breach of contract, unless there is a break in the chain of causation (as was urged by counsel for the bank and Mr Moore) in my view Mr Ravesi would be entitled to damages representing the amount of the proposed cover to be paid from (say) June 2009 about six months after his accident of $140,000, the total and permanent disability lump sum cover, together with interest at the Court prescribed interest rate from that date to the present time.

75    Before dealing with the issues of causation and contributory negligence raised by the defendants, it is appropriate to address the other bases for Mr Ravesi’s claims.

76    I do not consider that the conduct of Mr Moore contravened s 52 of the Trade Practices Act 1975 (Cth) (now s 18 of the Australian Consumer Law as Schedule 2 to the Competition and Consumer Act 2010 (Cth)). It may be accepted that the conduct of Mr Moore, or more accurately of NAB through Mr Moore, entering into the contract whereby Mr Moore undertook to provide advice in exercise of his expertise in a competent manner involved a representation that he would do so. That is a representation as to a future state of affairs, or as to his intention. It has not been shown to be incorrect. The breach of contract which I have found was the failure to comply with the instructions which were given. That amounted to a failure on the part of Mr Moore in breach of contract, but it does not mean or demonstrate that he did not intend to comply with the instructions he had been given. As I have found, the failure to do so arose from a misunderstanding between him and Mr Ravesi. It was argued by Mr Ravesi that the conduct of Mr Moore was misleading and deceptive because the contractual term that he would comply with Mr Ravesi’s instructions was breached, and it was therefore misleading and deceptive that the instructions had not been complied with. It is not necessary to decide that question. That is simply because, in any event, the nature of the contravention would be the same as the breach of contract which I have found to have been made out and there is no suggestion that, in the present circumstances, the way in which damages for breach of contract or for breach of s 52 would be assessed differently. There is an extensive discussion of the topic in Cheshire & Fifoot, Law of Contract, 10 Australian Edition, 2012, at 11.111-11.123 (pp 601-633).

77    If the finding of fact about the existence of a breach of contract is incorrect, I would in any event conclude that Mr Moore was in breach of his duty of care to Mr Ravesi by reason of the circumstances in which Mr Ravesi’s asserted instruction (which, for the purposes of this paragraph of the reasons for judgment, I assume to have been made that he did not want Asset Protection/Personal Protection), because in my view the circumstances in which that instruction came to be implemented involved a failure on the part of Mr Moore to take reasonable care and exercise reasonable skill in the particular circumstances.

78    The reasons for that conclusion should be apparent from the above comments. I shall not repeat those reasons in detail. In short, in my view, it was apparent to Ms Moore that both Mr Ravesi and Ms Torres, despite their personal experience, were relying upon Mr Moore’s expertise and in general were prepared to adopt his recommendations subject to checking the quantification of the needs which he had identified. The meeting of 12 September 2006 confirmed that. Thereafter, the revised quotation was a brief document reflecting only the minor variations in the amount of cover which Mr Ravesi and Ms Torres had requested as a result of the meeting of 12 September 2006. They did not receive a detailed schedule showing the content of the proposed policies 1 and 2 in each of their instances, nor a revised quotation for Affinity for the purposes of comparison. The Authority to Proceed signed by Mr Ravesi was, for the reasons I have given, not clearly one which was intended to exclude Asset Protection/Personal Protection as previously recommended and as he had, apparently, indicated an intention to accept at that earlier meeting. Having regard to the significance of his role in Affinity, and the personal needs which he had (as properly identified by Mr Moore), in my view it was incumbent upon Mr Moore to raise at the meeting on 28 September 2006 the fact that the change of instructions, as he understood it, was removing a significant level of cover which he had recommended in respect of the person whose ongoing well-being was of most importance to the welfare of Affinity and to the security of Mr Ravesi and to some extent Ms Torres. In my view, Mr Moore should, acting reasonably and providing reasonable advice, at that point, have raised the wisdom of that instruction and pointed out those matters. Ultimately, as Mr Moore said, it was a matter for the decision of Mr Ravesi, but his advice should have extended to questioning the wisdom of that decision and who have pointed out that such cover should have been maintained unless it could not be afforded and to have at least pointed out the possibility of rebalancing the cover between himself and Ms Torres.

79    I find that he was in breach of the duty of care implied into the contract, and alternatively one imposed at common law. Again, the potential award of damages would not differ whatever the cause of action. I also find, having regard to the general conduct of both Mr Ravesi and Ms Torres, and in particular their general preparedness to accept the advice of Mr Moore and their preparedness to recognise the need for insurance cover to protect both Affinity and themselves personally, that if such advice had been given by Mr Moore on 28 September 2006, Mr Ravesi would have altered the instruction which (I am assuming) he gave and would have maintained his proposed Asset Protection/Personal Protection in accordance with the revised recommendation.

80    Counsel for NAB and Mr Moore contended that, in any event, the cause of the loss suffered by Mr Ravesi by not having that insurance cover was not any breach of contract or breach of duty on the part of Mr Moore, but his own default. In particular, and with some force, it was argued that by reason of Mr Ravesi (and Ms Torres) receiving from MLC their respective letters providing detail of the cover which had been issued on 14 December 2006, they had simply had the opportunity to ascertain clearly what insurance cover had been provided. Mr Ravesi’s failure to act on that advice, and subsequently by the advice he received by each of the succeeding annual notices on 9 November 2007 and 8 November 2008 containing the replacement schedules, the cause of him being uninsured to the level he said he wanted at the time of the accident was solely his own. I have referred to those respective notices at [8]-[11] above.

81    For the purposes of deciding whether Mr Ravesi had given the instruction which he asserted, I took into account that he had received those subsequent documents. His evidence was that he did not pay them sufficient attention and did not apprehend that they told him, as they did (that he had not procured the level of insurance which he said he expected). I have accepted his evidence in that respect. To a degree, Ms Torres confirmed that evidence. I think that is only partial support for his evidence because, overall, the evidence is that he tended to open the mail and pay more attention to the detailed financial affairs of Affinity and of their personal affairs than she did. However, she did not baulk upon receipt of the email from Mr Moore of 29 September 2006, although in short terms it also pointed out the limited cover proposed to be required for Mr Ravesi. Had she understood that fact at that time, I have no doubt that she would have immediately prompted Mr Ravesi to pursue the more extended cover which he had asked, and would have been sensitive to receipt and consideration of the subsequent notices to Affinity, and to her, and to Mr Ravesi.

82    In the light of that finding, I do not accept that Mr Ravesi’s failure to carefully look at those documents and to apprehend from them, particularly the notice of 14 December 2006, that he did not have the level of insurance cover which he understood he was to receive was the sole cause of the loss he suffered by reason of not having that insurance. The question of causation is, of course, a matter of practical common sense. In my view, it is consistent with the application of such a test to conclude that Mr Moore’s failure to give effect to the instructions which he was given (on my findings), and alternatively his failure to raise with Mr Ravesi the wisdom or otherwise of the instruction which he said he received, was still an operating factor in Mr Ravesi not having asset Protection/Personal Protection insurance to the level he had anticipated in accordance with Mr Moore’s recommendation at the time of the accident. I will address separately whether his failure to consider and respond to those documents adequately was, in the circumstances, a matter of contributory negligence.

83    Counsel for NAB and Mr Moore referred to two particular decisions to support his contention that, in the circumstances, the sole cause (in a legal sense), for Mr Ravesi not having that insurance at the time of the accident was his own alone. O’Connor v BDB Kirby & Co [1972] 1 QB 90 concerned responsibility for the misstatement in an insurance proposal. The proposal had been completed erroneously, in the presence of the insured, and the insured was then asked to read it and sign it. He did so. It was his warrantee to the insurer that the information contained in the proposal form was accurate. In the particular circumstances, the Court concluded that inserting the erroneous answer on the proposal form was, effectively, solely caused by the insured’s breach of duty. A somewhat similar circumstance was addressed in ACN 068 691 092 Pty Ltd v Plan 4 Insurance Services Pty Ltd (2012) 112 SASR 329 (ACN 068). In that case, the claim against the insurers failed for other reasons than the issue of causation, but the matter of causation was a second reason for the claim being dismissed. It was found that there was no causal link between the conduct complained of and the loss. The relevant conduct was the statement of the value of the insured property. The particular document, a request for confirmation of insurance including a specification of the value of the insured property, had been sent to the insured to read and check and to confirm it before it was submitted to the insurer. By that process, the Court found that the insured was aware about the representation as to the value of the insured property, as well as evidence subsequently of that level of awareness in later communications. In those circumstances, the Full Court of the Supreme Court of South Australia dismissed an appeal on the issue. As is apparent, both of those decisions represented findings of fact in their particular circumstances. The circumstances in each case must be carefully looked at. They are somewhat different to each of those cases as facts somewhat different from the present circumstances. I do not accept that they direct a different outcome than the conclusion which I have reached on the question of causation.

84    In ACN 068, Kelly J at [136] might also seem to be suggesting that, because the insured had the opportunity to read and check the level of the value of the insured premises as represented to the insurer, and the level of the insurance sought, and so had an opportunity to rectify the mistake in the proposal form, that may have been sufficient to conclude that the sole cause of the under-insurance was that of the insured. I do not consider that her Honour was intending to say that, in all circumstances, if an insured has an opportunity to be aware of a misrepresentation in a policy, or an error as to the level of insurance which has been obtained, that opportunity is itself necessarily sufficient to break the chain of causation. As I have said, every case will need to be addressed in its particular circumstances. That may well have been an appropriate observation to have made in that case. I do not think it applies in the present circumstances.

85    However, I accept the alternative submission on behalf of NAB and Mr Moore that Mr Ravesi’s failure to look carefully at those documents, as he should have done, is a contributing cause to him not having Asset Protection/Personal Protection at the time of the accident. He had a primary opportunity to do so when he received the notice of the level of insurance with the letter of 14 December 2006. He had two subsequent opportunities to do so. It is the purpose of those letters, clearly, that the insured should look at them so as to be aware of the level of insurance cover which has been issued. Mr Ravesi, for whatever reason, clearly did not do so. I consider that that is a significant departure from the level of care which should be expected of an insured person looking after that person’s own interests. My observations about the significance of the insurance recommended by Mr Moore to protect Affinity, Mr Ravesi and Ms Torres are equally applicable to Mr Ravesi himself. His want of care to ensure that it had the level of insurance which he had instructed (as he understood it) is quite significant. It was a want of care which extended to failing to look with any meaningful degree at the three communications I have referred to over a period of years. Determining the appropriate proportion by which his claim should be reduced for that want of care for his own protection is a difficult exercise. The failure to give effect to his instruction arose from a misunderstanding between himself and Mr Moore on 28 September 2006. That misunderstanding may have been alleviated had Mr Moore reacted to what he perceived to be Mr Ravesi’s instruction in the manner which I have referred to above. On the other hand, Mr Ravesi thereafter can fairly be described as irresponsible and inattentive to his own interests to a significant degree by failing to look at the subsequent correspondence received from MLC in any detail.

86    In my view, in the circumstances, Mr Ravesi’s entitlement to damages should be reduced significantly for his own negligence. I think an appropriate reduction is 40%, so that he should recover 60% of the damages to which he would otherwise be entitled.

87    I have referred at [74] above to the primary claim which is for $140,000 for the total and permanent disability lump sum cover which Mr Ravesi had thought would be available to him. Although Mr Ravesi’s submissions extended beyond such a claim, I do not think loss beyond that amount has been made out. As a matter of history, the evidence indicates that Affinity effectively ceased operating in early February 2009. That demonstrates the significance of Mr Ravesi to its effective operation. In part, that circumstance may have been a consequence of the time at which MLC accepted Affinity’s claim. In fact, its claim based upon the TPD of Mr Ravesi on its own policy was only accepted some considerable time later, after Affinity had been liquidated and deregistered. I was told that it is now reinstated, and that the entitlement of Affinity to that insured sum is now met and will be applied by the liquidator of Affinity. However, there is no evidence upon which I could, or do, find that Affinity’s prompt failure following the accident to Mr Ravesi was caused by Mr Ravesi not having Asset Protection/Personal Protection insurance for TPD in the sum of $140,000 as he had understood was the case. There is no evidence of sufficient cogency to make that connection. Nor is there evidence from which I can, or do, connect the losses obviously suffered by Mr Ravesi, and Ms Torres upon the failure of Affinity with the absence of that insurance. Mr Ravesi’s injury occurred only on 10 December 2008 and his claim was made early in 2009. By that time, it appears, Affinity had failed. There is no cogent evidence by which the consequences of its failure, that is the personal consequences to Mr Ravesi, can be attributed to the absence of the particular insurance to which I found he should have been entitled, in that short period of time.

88    For those reasons, in my view, Mr Ravesi is entitled to judgment for 60% of $140,000, namely $84,000. That amount should have been paid, I find, by at least June 2009. He should be entitled to interest thereafter on that amount. Rather than require the parties to undertake a detailed calculation of interest, I have made a rough calculation at 7% per annum (not compounded) for 4.5 years, coming to $26,460. It is not significantly different from applying a compounded interest rate of 4.5% over the same period. I have selected that interest rate having regard to the preserved cash interest rate specified over the period from mid-2009.

89    Accordingly, there will be judgment in favour of Mr Ravesi against NAB and Mr Moore in the sum of $110,460. The claim against MLC will be dismissed. So that it is not seen as having been overlooked, I note that it was accepted by NAB that it was vicariously liable for the conduct of Mr Moore in the circumstances. I will give the parties the opportunity to make submissions as to costs.

Associate:

Dated:    19 February 2014