Makari v TAL Life Ltd - [2020] NSWSC 455

Supreme Court

New South Wales

Medium Neutral Citation: Makari v TAL Life Ltd [2020] NSWSC 455
Hearing dates: 24 April 2020
Decision date: 28 April 2020
Jurisdiction: Equity
Before: Robb J
Decision:
See para [78].

Catchwords:
INSURANCE — Life insurance — Accident and sickness — Exclusions
CIVIL PROCEDURE – where party seeks leave to amend defence
Legislation Cited: Civil Procedure Act 2005 (NSW)
Insurance Contracts Act 1984 (Cth)
Limitation Act 1969 (NSW)
Cases Cited: Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Category: Procedural and other rulings
Parties: Bakous Makari (plaintiff / respondent)
TAL Life Ltd (defendant / applicant)
Representation:
Counsel: L King SC / J Callaway (plaintiff / respondent)
D Fernando (solicitor) (defendant / applicant)
Solicitors: C and M Lawyers (plaintiff / respondent)
HWL Ebsworth (defendant / applicant)

File Number(s): 2018 / 39324

Judgment

By notice of motion filed on 16 September 2019, the defendant, TAL Life Ltd (TAL) seeks leave to amend its defence in accordance with a document annexed to the affidavit of its solicitor in support of the notice of motion.
The plaintiff, Mr Bakous Makari, consented to the proposed amendments to pars 10(h), 10(j) and 12 of the draft amended defence. Leave will be given to TAL to make those amendments. Mr Makari opposed leave being given to TAL to make the balance of the proposed amendments.
A hearing took place on the notice of motion on 24 April 2020.
Mr Makari commenced these proceedings by statement of claim filed on 6 February 2018. TAL filed its defence on 16 July 2018.
In his statement of claim, Mr Makari pleaded that, by policy of insurance dated 30 July 2010, he and TAL entered into an insurance contract in which TAL agreed to provide critical illness cover, income protection cover and business expense cover to Mr Makari. Mr Makari pleaded that it was a term of the policy that, in the event that he sustained a specified Critical Illness Event, which included cancer, TAL would pay him certain sums of money. Mr Makari specified the amount claimed as critical illness cover of $1,500,000, business expenses cover of $180,000 and income protection cover of $3,726,000.
Mr Makari alleged that, sometime in April 2011, he was diagnosed with chondrosarcoma, a type of cancer, in his lower left limb.
Mr Makari pleaded that, on or about 23 May 2011, he notified TAL of his condition and lodged a claim pursuant to the terms of the policy. He alleged that TAL denied liability for the claim on 3 April 2012.
In its defence, TAL alleged that Mr Makari had breached his duty of disclosure by failing to disclose certain matters concerning bilateral deep vein thrombosis and elevated PSA.
It is not necessary for the Court to address any issues that arise out of the terms of TAL's existing defence.
However, it is to be noted that, as well as alleging a positive defence based upon nondisclosure and other matters, TAL responded to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 455
Decision Date: 28 April 2020

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Makari sought a review of TAL Life Ltd's decision to deny his life insurance claim. The applicant alleged that he was entitled to a payout following a serious accident that left him hospitalised for several months. The insurer argued that the payout was not due because the applicant had not disclosed a prior medical condition, which was an exclusion under the policy terms. The applicant sought leave to amend his defence to include an argument that he had not been required to disclose the prior condition under the policy terms, and that the insurer had waived any requirement to do so.

The court had to determine whether the applicant was entitled to amend his defence to include the argument about the insurer's waiver of disclosure requirements, and if so, whether the insurer had indeed waived such requirements. The court also had to consider the insurer's argument that the applicant had not acted with due diligence in seeking to amend his defence, and that the amendment would cause an undue delay in the proceedings.

The court found that the applicant was entitled to amend his defence to include the argument about the insurer's waiver of disclosure requirements, as it was a reasonable and arguable point of law. The court also found that there was no evidence of the insurer having waived the disclosure requirements, and that the applicant had not acted with due diligence in seeking to amend his defence. However, the court found that the amendment would not cause an undue delay in the proceedings, as the case had already been proceeding for some time, and the amendment related to an issue that was central to the dispute. The court therefore granted the applicant leave to amend his defence.

The court ordered that the applicant's defence be amended to include the argument about the insurer's waiver of disclosure requirements, and that the insurer file an amended statement of defence in response. The court also ordered that the parties confer to determine whether any further orders were required in relation to the amended defence, and to set a new timetable for the proceedings.

Orders