National Mutual Life Association of Australasia Limited v Tolfield Pty Ltd [2011] FCA 707

FEDERAL COURT OF AUSTRALIA

National Mutual Life Association of Australasia Limited v Tolfield Pty Ltd [2011] FCA 707 Citation: National Mutual Life Association of Australasia Limited v Tolfield Pty Ltd [2011] FCA 707

Parties: THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED (ACN 004 020 437) v TOLFIELD PTY LTD (ACN 010 147 243), FRANCES MARY SHEAHAN and SUZANNE COX

File number: VID 840 of 2010

Judge: COLLIER J

Date of judgment: 22 June 2011

Catchwords: PRACTICE AND PROCEDURE – notice of motion in respect of contentions of fact and law of respondents – dispute between respondents as to proper disbursement of proceedings of life insurance policy – respondents the only active disputants – payment by applicant insurance company of insurance monies into Court pursuant to s 215(1) Life Insurance Act 1995 (Cth) – disputants widow and sister of deceased – policy owned by family company of life insured – nominated beneficiary of policy originally widow of deceased – later communication to insurance company by insured on behalf of family company changing nominated beneficiary to sister – sister alleges change in nominated beneficiary following ill-treatment of insured by family – leave to amend Contentions of Fact and Law and leave to amend Contentions in Reply pursuant to O 13 r 2(1) Federal Court Rules – family company proper claimant as owner and beneficiary of policy – removal of references to widow from Contentions of Fact and Law – whether need for widow to formally discontinue – no material prejudice occasioned to sister should leave be granted for amendments sought – whether reference to indefinite period causes prejudice, embarrassment or delay in proceeding – meaning of "embarrassing" – meaning of affairs of a company being "controlled" – reference to acting as managing director and actual control – no claim of express terms of contract arising from conduct of parties relating to nomination of beneficiaries – conduct modifying express terms of contract must constitute later agreement or conduct amount to variation of contract – allegation of implied term as to nomination of a beneficiary to receive benefits payable – whether request for further and better particulars was request for evidence – material facts to be pleaded – order pursuant to O 10 r 1(2) and O 12 r 5 – necessity for pleadings to apprise opposite party of case it must meet