Rebolledo v. Royal & Sun Alliance Financial Services Ltd [2002] NSWSC 104

New South Wales Supreme Court

CITATION : Rebolledo v. Royal & Sun Alliance Financial Services Ltd [2002] NSWSC 104 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2151/01 HEARING DATE(S) : 25 to 27 February, 2002 JUDGMENT DATE : 27 February 2002

PARTIES : Juan Rebolledo - Plaintiff Royal & Sun Alliance Financial Services Ltd - Defendant JUDGMENT OF : Palmer J

COUNSEL : M.L. Williams SC with R.S. Sheldon - Plaintiff J.E. Maconachie QC with R. Seton - Defendant SOLICITORS : Carroll & O'Dea - Plaintiff Boyd House & Partners - Defendant CATCHWORDS : PRACTICE AND PROCEDURE - PLEADING - LEAVE TO AMEND - New issue raised on second day of expedited hearing - evidence said to support new issue known to Defendant and legal advisers long before proceedings commenced - Counsel thinks of new point - if amendment granted, lengthy adjournment inevitable and great psychological, emotional and financial distress would be caused to Plaintiff and family - factors in exercising discretion considered - whether distress and hardship to Plaintiff can be alleviated by costs order - where the interests of justice lie. - Attorney General v Lord Mayor of Sheffield (1912) 106 LT 367 CASES CITED : - Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 - Ketteman v Hansel Properties Ltd [1987] AC 189 - Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 DECISION : Leave to amend refused.

1 These are my reasons for refusing, yesterday morning, to accede to the Defendant's application for leave to amend its Amended Defence herein. 2 The Plaintiff, Mr Rebolledo, has been incapacitated by illness since March 1999 and has been unable to work. From March 1999 until 24 August 2000 the Defendant ("the Insurer") paid him monthly benefits under an Income Protection Policy which it had issued in 1994 ("the Policy"). On 24 March 2000 the Insurer ceased paying benefits and purported to avoid the Policy on the ground that Mr Rebolledo had made fraudulent misrepresentations to it about his health and income in order to induce it to enter into the Policy. 3 Mr Rebolledo commenced these proceedings in April 2001, seeking a declaration that he was still entitled to receive benefits under the Policy or, in the alternative, damages for the Insurer's wrongful termination of the Policy. By its Defence, the Insurer did not admit that Mr Rebolledo has been disabled and unable to work since March 1999, but its substantial defence was that it had validly terminated the Policy by reason of Mr Rebolledo's fraudulent misrepresentation. 4 Mr Rebolledo has been placed in severe personal and financial difficulty because of the Insurer's refusal to pay benefits under the Policy since August 2000. He is, as I have said, incapacitated and has no source of income other than from social security benefits. He is married with four children and his wife also has serious medical problems. Not surprising, he and his wife became extremely depressed by the seemingly hopeless position in which they found themselves. 5 On 9 July 2001 Mr Rebolledo's solicitors filed a Notice of Motion seeking that the hearing of the proceedings be expedited. In support of Mr Rebolledo's application for an expedited hearing his solicitors filed an affidavit of Alexandra Darcey sworn 9 July 2001. Ms Darcey is the solicitor with day-to-day conduct of the matter. She gave the following unchallenged evidence as to the position of Mr and Mrs Rebolledo: "6. On 1 November 2000 Mrs Rebolledo said to [Counsel] and myself in words to the effect "Our only income comes from social security benefits. They go nowhere towards meeting our debts which include a mortgage on our home. Juan is currently in Chile trying to sell some property. It is worth about $10,000 Australian. We may be able to hold on to the house for a little bit longer. I receive phone calls every day from creditors in relation to our other debts".