Makari v TAL Life Ltd (No 2) - [2020] NSWSC 775

Supreme Court

New South Wales

Medium Neutral Citation: Makari v TAL Life Ltd (No 2) [2020] NSWSC 775
Hearing dates: On the papers
Decision date: 19 June 2020
Jurisdiction: Equity
Before: Robb J
Decision:
See pars [47] to [49]. Parties should confer for the purpose of agreeing dates to be inserted in the draft orders, and provide draft short minutes of order, together with any other response that may be appropriate, to the associate to Robb J within 10 days of the publication of these reasons for judgment.

Catchwords: CIVIL PROCEDURE — where party seeks leave to amend defence — where the Court delivers a principal judgment on that application, and then requests a response to certain issues in the proposed amendments — where the Court would impose certain requirements to resolve the application to amend the defence
Legislation Cited: Insurance Contracts Act 1984 (Cth)
Cases Cited: Asteron Life Ltd (formerly Royal & Sun Alliance Financial Services Ltd) v Zeiderman (2004) 59 NSWLR 585; [2004] NSWCA 47
Makari v TAL Life Ltd [2020] NSWSC 455
Category: Procedural and other rulings
Parties: Bakous Makari (plaintiff / respondent)
TAL Life Ltd (defendant / applicant)
Representation:
Counsel: Counsel: L King SC / J Callaway (plaintiff / respondent)
N Matkovich (sol) (defendant / applicant)
Solicitors: C and M Lawyers (plaintiff / respondent)
HWL Ebsworth (defendant / applicant)

File Number(s): 2018 / 39324

Judgment

On 16 September 2019, the defendant, TAL Life Ltd (TAL), filed a notice of motion by which it sought leave to amend its defence.
The Court delivered a judgment on that application on 28 April 2020: Makari v TAL Life Ltd [2020] NSWSC 455.
The principal judgment considered the amendments that TAL sought leave to make in two groups. The first was set out at [15] and [16] and the second at [50]. For the reasons set out in that judgment, I gave TAL an opportunity to provide to the Court a response to the problems that I described in the judgment concerning the amendments that TAL sought leave to make.
TAL’s solicitors provided its further submissions under cover of an email dated 12 May 2020. They attached a revised draft of TAL’s proposed amended defence.
TAL deleted from the revised draft the amendment contained in the earlier draft that is set out at [15] and [16] of the principal judgment. As TAL no longer seeks leave to make that amendment, it need not be considered further.
TAL has replaced the amendment set out at [50] of the principal judgment with the following more elaborate draft pleading:

CRITICAL ILLNESS CLAIM
15. Further and in the alternative, if the Court finds that the Policy was not avoided, the Critical Illness Claim is excluded by cl 9.2 of the Policy.
16. At all material times, cl 9.2 of the Policy relevantly provided that no payments would be made under the Critical Illness insurance “in the case of … Cancer … if … the signs or symptoms leading to diagnosis became apparent…

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 775
Decision Date: 19 June 2020

CaseChat Overview and Summary

The matter before the court involved a dispute between Makari and TAL Life Ltd, specifically concerning a life insurance policy. Makari sought leave to amend his defence to include certain new claims, and the court was required to determine whether such an amendment should be allowed. The Federal Court of Australia was the forum for this case, with the hearing taking place at the Brisbane Registry.

The primary legal issue before the court was whether Makari should be granted leave to amend his defence in order to include additional claims that were not initially presented. This decision hinged on whether the proposed amendments had merit, whether they were an abuse of the court process, and whether they would cause any undue delay or prejudice to the opposing party, TAL Life Ltd. Additionally, the court had to consider whether there were any impediments to the proposed amendments being heard in the current proceedings.

The court found that Makari should be granted leave to amend his defence, subject to certain conditions. The judge ruled that while the proposed amendments had some merit, they were not entirely without merit. However, to ensure a fair trial and to avoid any potential prejudice to TAL Life Ltd, the court imposed specific requirements on Makari. These included providing detailed particulars to support the new claims and ensuring that the amendments did not cause undue delay to the proceedings. The court also noted that it would reserve the right to further assess the merits of the new claims at a later stage in the proceedings.

In conclusion, the court granted Makari leave to amend his defence, subject to the specified conditions. The decision acknowledged the potential merit of the new claims but emphasised the importance of ensuring a fair trial for both parties. The court's ruling provides a balanced approach to the issue of amending pleadings in the context of ongoing litigation.

Orders