O’Shanassy v AIA Australia Limited (previously The Colonial Mutual Life Assurance Society Limited t/as CommInsure) [2022] NSWSC 677

Supreme Court New South Wales

Medium Neutral Citation: O'Shanassy v AIA Australia Limited (previously The Colonial Mutual Life Assurance Society Limited t/as CommInsure) [2022] NSWSC 677 Hearing dates: 15 October 2021 Date of orders: 26 May 2022 Decision date: 26 May 2022 Jurisdiction: Equity Before: Henry J Decision: See [154]. Catchwords: CIVIL PROCEDURE – pleadings and evidence – amendment – plaintiff seeks leave to amend pleadings and rely upon further expert evidence – where proposed amendments sought after significant delay – whether delay adequately explained – where new claim would significantly broaden the factual issues and scope of evidence – where previous application brought for leave to amend refused – where arguable but difficult case – plaintiff seeks leave to rely upon further evidence – where plaintiff previously granted leave to rely on evidence and faced a guillotine order – application to amend granted in part – leave granted to rely upon further evidence on conditions Legislation Cited: Civil Procedure Act 2005 (NSW) Insurance Contracts Act 1984 (Cth) Insurance Contracts Amendment Act 2013 (Cth) Life Insurance Act 1995 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2021] FCAFC 121 Allianz Australia Insurance Ltd v General Cologne Re Australia Ltd [2003] NSWSC 144 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Delor Vue Apartments CTS 39788 v Allianz Australia Insurance Ltd (No 2) [2020] FCA 588 Gain Capital UK Limited v Citigroup Inc (No 3) [2016] FCA 582 Hannover Life Re of Australasia Limited v Sayseng [2005] NSWCA 214 Karl Suleman Enterprizes Pty Ltd (in liq) v Pham [2013] NSWCA 93 Paul Gerard O'Shanassy v The Colonial Mutual Life Assurance Society Limited trading as CommInsure (Supreme Court (NSW), Lindsay J, 30 November 2020, unrep) Stanley v Layne Christensen Company [2006] WASCA 56 The Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd (No 2) [2007] NSWSC 797 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44 Wang v ABC Homes (NSW) Pty Ltd (No 2) [2018] NSWSC 1736 Texts Cited: D Kelly and M Ball, Principles of Insurance Law (LexisNexis Australia, loose-leaf) Category: Procedural rulings Parties: Paul Gerard O'Shanassy (Plaintiff/First Cross-Defendant) AIA Australia Limited (previously The Colonial Mutual Life Assurance Society Limited trading as CommInsure) (First Defendant/First Cross-Claimant) Equius Admin Pty Limited (Second Defendant/Second Cross-Defendant) Representation: Counsel: T Meighan with C Coventry (Plaintiff/First Cross-Defendant) H Mann (Second Defendant/Second Cross-Defendant) Solicitors: Equius Admin Pty Limited (Plaintiff/First Cross-Defendant) HWL Ebsworth Lawyers (First Defendant/First Cross-Claimant) File Number(s): 2017/288349 Publication restriction: Nil