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

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

Leave to amend should be granted because the amendment raises an arguable issue on the proper construction of the insurance policy and s 47 of the Insurance Contracts Act, and provided factual matters can be determined on existing lay evidence, but only on conditions ensuring no disputed factual issue remains as to continuity of the medical condition and limiting expert evidence accordingly to prevent unfair prejudice to the plaintiff.

Jurisdiction
Australia
Judgment Date
19 June 2020
Procedural Posture
Civil / Application for Leave to Amend Defence; Interlocutory Ruling
Outcome
Leave to amend the defence granted conditionally
Legal Topics
['amendment of Pleadings' 'insurance Contracts' 'exclusion Clauses' 'interpretation of Insurance Policies']
['civil Procedure' 'equity'] ['amendment of Pleadings' 'insurance Contracts' 'exclusion Clauses' 'interpretation of Insurance Policies']

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Procedural Posture

Civil / Application for Leave to Amend Defence; Interlocutory Ruling

Legal Issues

  1. 1 ['Whether leave should be granted to the defendant to amend its defence to include allegations based on cl 9.2 of the Policy' 'Proper construction of cl 9.2 of the insurance policy' 'Whether s 47 of the Insurance Contracts Act 1984 (Cth) prohibits reliance on cl 9.2' 'Whether granting leave would require further expert medical evidence, and whether conditions should attach to any such leave']

Ratio Decidendi

Leave to amend should be granted because the amendment raises an arguable issue on the proper construction of the insurance policy and s 47 of the Insurance Contracts Act, and provided factual matters can be determined on existing lay evidence, but only on conditions ensuring no disputed factual issue remains as to continuity of the medical condition and limiting expert evidence accordingly to prevent unfair prejudice to the plaintiff.

Court Disposition

Leave to amend the defence granted conditionally

Orders

  • ['Grant leave to the defendant to amend its defence by filing an amended defence in the terms of the revised draft attached to the email dated 12 May 2020.' 'Leave is conditional on the defendant accepting that the cyst diagnosed as cancerous on 23 December 2010 was the same, or substantially the same, medical...