Bravo v OnePath Custodians Pty Ltd

[2022] QSC 296

SUPREME COURT OF QUEENSLAND

CITATION:

Bravo v OnePath Custodians Pty Ltd and Anor [2022] QSC 296

PARTIES:

MICHAEL JOHN BRAVO

(plaintiff)

v
ONEPATH CUSTODIANS PTY LTD (ABN 008 508 496)

(first defendant)

and

ONEPATH LIFE LTD (ABN 33 009 657 176)
(second defendant)

FILE NO/S:

BS2508/22

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

21 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

16 December 2022

JUDGE:

Brown J

ORDER:

The Orders of the Court are:

1.   Pursuant to rules 62 and 69(1)(b)(i) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the plaintiff be granted leave to substitute the second defendant with Zurich Australia Limited.

2. Pursuant to rules 375 and 377(1)(c) of the UCPR, the plaintiff be granted leave to file and serve an Amended Claim within 21 days of the orders made in this Application.

3. Pursuant to rule 375 of the UCPR, the plaintiff be granted leave to file an Amended Statement of Claim within 21 days of the orders made in this Application.

4.   Zurich to pay the plaintiff’s costs of preparing and filing the Amended Statement of Claim fixed in the sum of $770.00 plus any filing fees within 14 days of a request for payment by the plaintiff.

CATCHWORDS:

PRACTICE AND PROCEDURE – PARTIES – SUBSTITUTION – where a scheme of arrangement was confirmed transferring the life insurance business of the second defendant to a third party – where by reason of the transfer the second defendant has ceased to be an appropriate or necessary party to the proceedings – where the parties seek orders to substitute the second defendant with the third party

Uniform Civil Procedure Rules 1999 (Qld) rr 62, 69, 375, 377

OnePath Life Limited, in the matter of OnePath Life Limited (No 2) [2022] FCA 811, cited

SOLICITORS:

Maurice Blackburn Lawyers for the plaintiff
Turks for first and second defendants

1. The second defendant makes an application on the papers to substitute in place of the second defendant Zurich Australia Limited (Zurich) pursuant to rr 62 and 69(1)(b)(i) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). The second defendant also seeks orders granting the plaintiff leave to file and serve an amended claim and statement of claim within seven days of the application and that the proposed substitute defendant Zurich pay the plaintiff’s costs of preparing and filing the statement of claim in a fixed amount.

2. The circumstances in which the orders are sought are that the second defendant issued a policy of life insurance numbered 1004907229 to the first defendant, the trustee of the OnePath Master Fund.  By statement of claim in these proceedings, the plaintiff pleads he was a member of the OnePath Master Fund, suffered a total disability and that in breach of the cover provided to him and deed, the defendant ceased payment of benefits on 4 April 2021.  One of the orders the plaintiff seeks is that he be paid benefits under the total disability cover provided by the second defendant.  The defendants have pleaded in their defence and counterclaim that the total disability cover and other life insurance cover on the life of the plaintiff had been avoided pursuant to s 29 of the Insurance Contract Act 1984 (Cth) and no benefits are payable.  They also seek orders by way of counterclaim for the payment of monies paid to the plaintiff.

3. On 6 July 2022 the Federal Court approved[1] the transfer of the life insurance business of the second defendant to Zurich under a scheme made under Part 9 of the Life Insurance Act 1995 (Cth) (the Scheme). Under that transfer, there was a transfer of all business including the policies and policy liabilities and the business assets and business liabilities from OnePath Life Ltd to Zurich. This included all right title, interest, benefit and powers that had arisen or may in the future arise under any of the policies or policy liabilities and business assets and liabilities. Under the Scheme, the rights and obligations of the insured under their existing policy and in respect of the proceedings against OnePath Life Ltd are unchanged by the transfer, save that those rights and obligations as well as any liabilities associated with the proceedings have now been transferred to Zurich. Clause 6 of the Scheme provides that “proceedings will be continued by or against Zurich, and the parties agree to take all necessary action to effect a change of the name of the party in those proceedings from OnePath Life to Zurich.” The effective date is 1 August 2022. The second defendant is to be wound up and is expected be wound up by the end of the year. It therefore seeks orders under r 69(1)(b)(i) of the UCPR given the transfer that has occurred.

   [1]OnePath Life Limited, in the matter of OnePath Life Limited (No 2) [2022] FCA 811.

4. The plaintiff was informed by letter of 5 September 2022 of the Scheme and the second defendant’s intention to seek substitution orders, to pay the costs of the other parties in relation to the substitution and to seek winding up of the second defendant. The application and material were served upon the solicitors for the plaintiff. By email dated 12 December 2022, the solicitors for the plaintiff notified the second defendant that the plaintiff did not object to the orders sought in the application and did not wish to be heard.

5. By reason of the transfer, OnePath Life Ltd has ceased to be an appropriate or necessary party to the proceedings and Zurich is the entity whose presence is now necessary to enable the Court to adjudicate effectually and completely in all matters in dispute.  In all of the circumstances it is appropriate for the Court to exercise its discretion and make the orders supporting the substitution of Zurich as the second defendant in the proceedings. 

6. I will therefore make the orders in accordance with the application, save the time has been extended from seven days to 21 days to take account of Christmas closures.