FEDERAL COURT OF AUSTRALIA

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

THE COURT ORDERS THAT:

1.    Pursuant to Order 13 rule 2(1) of the Federal Court Rules, leave be granted to the First and Third Respondents to amend their Contentions of Fact and Law filed 3 December 2010 and their Contentions in Reply filed 9 February 2011 in accordance with the drafts annexed to the affidavit of Vicky Stathakis filed 3 May 2011 and the affidavit of Vicki Stathakis filed 12 May 2011, subject to costs of the Second Respondent thrown away in respect of these amendments being reserved.

2.    Paragraph 6 of the Amended Contentions of Fact and Law of the Second Respondent to the extent of the words “or alternatively from a date prior to December 1992” be struck out.

3.    Paragraph 12 of the Amended Contentions of Fact and Law of the Second Respondent to the extent of the words “an express term arising from the conduct of the parties, or alternatively” be struck out.

4.    Pursuant to Order 10 rule 1(2) and Order 12 rule 5 the Second Respondent file and serve further and better particulars of the contentions in paragraph 27 of the Second Respondent’s Amended Contentions of Fact and law dated 4 February 2011 in accordance with the requests for such particulars dated 28 January 2011 by 4.00 pm on 29 June 2011.

5.    Pursuant to Order 10 rule 1(2) and Order 12 rule 5 the Second Respondent file and serve further and better particulars of the contentions in paragraph 28 of the Second Respondent’s Amended Contentions of Fact and law dated 4 February 2011 in accordance with the requests for such particulars dated 28 January 2011 by 4.00 pm on 29 June 2011.

6.    Pursuant to Order 10 rule 1(2) and Order 12 rule 5 the Second Respondent file and serve further and better particulars of the contentions in paragraph 29 of the Second Respondent’s Amended Contentions of Fact and law dated 4 February 2011 in accordance with paragraphs 10(c), 10(d) and 10(e) of the requests for particulars dated 28 January 2011 by 4.00 pm on 29 June 2011.

7.    The notice of motion in respect of paragraphs 2(a), 2(d) and 3 of the notice of motion be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    In dispute in this case is the proper disbursement of the proceeds of the life insurance policy (“the policy”) of Mr Peter John Cox, now deceased. The policy was issued by the applicant in the proceedings, The National Mutual Life Association of Australasia Limited (“National Mutual Life”). I note that National Mutual Life also trades under the registered business name AXA Australia (“AXA”).

2    Two of the respondents, Tolfield Pty Ltd (“Tolfield”) and Ms Cox, have common interests. Ms Cox is a director of Tolfield, and is the widow of Mr Cox. Tolfield Pty Ltd was recognised by National Mutual Life as owner of the policy following the death of Mr Cox, and Ms Cox was recognised as preferred beneficiary. However Ms Sheahan, the third respondent and Mr Cox’s sister, also claims to be entitled to the proceeds of Mr Cox’s policy for reasons I summarise later in this judgment.

3    Notwithstanding the moving role of National Mutual Life as the applicant in the substantive proceedings, in substance National Mutual Life has taken a subordinate role in respect of this litigation. This is because the true or active disputants in proceedings are the respondents inter se. Section 215(1) of the Life Insurance Act 1995 (Cth) provides that a life company may pay into the Court any money payable by the company in respect of a policy for which, in the company's opinion, no sufficient discharge can otherwise be obtained. Section 215(2) provides further that payment of the money into the Court discharges the company from any liability under the policy in relation to the money. It is not in dispute that National Mutual Life paid the amount of $1,872,233 into Court on 1 October 2010 in accordance with s 215, that sum being moneys payable in respect of Mr Cox’s life insurance policy. It therefore follows that National Mutual Life no longer has an active role to play in relation to disbursement of the relevant moneys.

4    Given that the true dispute is between the respondents, Bromberg J on 20 October 2010 made directions that the respondents file and serve Contentions of Fact and Law identifying the factual and legal issues in dispute them.

5    Ultimately, the Court will be required to determine which of the respondents are entitled to be paid the proceeds of the life insurance policy of Mr Cox by the applicant.

6    At this stage of the proceedings Tolfield and Ms Cox on the one hand, and Ms Sheahan on the other, have filed notices of motion. During the course of the argument before me on 12 May 2011, Mr McQuade for Tolfield and Ms Cox, and Mr Cooper SC for Ms Sheahan, informed me that they believed the parties could achieve common ground in respect of disclosure issues, which were the subject of both notices of motion.

7    That remains to be seen.

8    In the meantime, the issues for determination at this stage of the proceedings are confined to paragraphs 1, 2, 3, 4 and 5 of the notice of motion filed by Tolfield and Ms Cox on 29 April 2011. These paragraphs are as follows:

1.    That pursuant to Order 13 rule 2(1), leave be granted to the First and third Respondents to amend their Contentions of Fact and Law filed 3 February 2011 and their Contentions in Reply filed 8 February 2011 in accordance with the drafts annexed to the affidavit of Vicky Stathakis to be affirmed.

2.    That pursuant to Order 11 rule 16, the following paragraphs of the Second Respondent’s Amended Contentions of Fact and Law dated 4 February 2011 be struck out:

a.    paragraph 6;

b.    alternatively to (a), paragraph 6 to the extent of the words ‘or alternatively from a date prior to December 1992’ and to the extent that paragraph 6 contains contentions regarding any period of time other than 1992 and 2009;

c.    paragraph 12 to the extent of the words ‘an express term arising from the conduct of the parties, or alternatively’;

d.    paragraph 27 to the extent of the words ‘and negotiated with him a settlement of their respective property rights and entitlements’;

e.    paragraph 28.

3.    In the alternative to paragraph 2 (a), that pursuant to and [sic] Order 10 rule 1(2) and Order 12 rule 5, the Second Respondent file and serve further and better particulars of the contentions in paragraph 6 of the Second Respondent’s Amended contentions of Fact and Law dated 4 February 2011 in accordance with the requests for such particulars dated 28 January 2011 and 6 April 2011, by 4.00pm, 19 May 2011.

4.    In the alternative to paragraph 2 (d), that pursuant to and [sic] Order 10 rule 1(2) and Order 12 rule 5, the Second Respondent file and serve further and better particulars of the contentions in paragraph 27 of the Second Respondent’s Amended Contentions of Fact and Law dated 4 February 2011 in accordance with the requests for such particulars dated 28 January 2011, by 4.00pm, 19 May 2011.

5.    That pursuant to and [sic] Order 10 rule 1(2) and Order 12 rule 5, the Second Respondent file and serve further and better particulars of the contentions in paragraph 29 of the Second Respondent’s Amended Contentions of Fact and law dated 4 February 2011 in accordance with paragraphs 10(c), 10(d) and 10(e) of the request for particulars dated 28 January 2011 by 4.00pm, 19 May 2011.

9    At the hearing on 12 May 2011, the parties submitted that, should I prepared to make the orders sought by the plaintiff, the date for compliance with orders referred to in paragraphs 3, 4 and 5 of the notice of motion should not be 19 May 2011, but rather one week from delivery of the judgment.

10    Before turning to consider the orders sought by the first and third respondents, set out in the notice of motion before the Court it is appropriate to outline the background facts to these proceedings.

Background

11    By application filed on 1 October 2010 National Mutual Life sought the following orders:

1.    A declaration as to the persons entitled to the proceeds of the policy listed in the Schedules hereto.

2.    Such other order or orders as the Court deems appropriate.

12    The application nominated the three respondents as:

    Tolfield Pty Ltd: the first respondent;

    Frances Mary Sheahan: the second respondent;

    Suzanne Cox: the third respondent.

13    There were three Schedules to the application, with each Schedule addressed to each respondent. In each Schedule the policy in respect of which there are proceeds for disbursement was described as follows:

Policy Number 6884,854/2

Owner: Tolfield Pty Ltd

Life Insured: Peter John Cox.

14    Ms Vicki Carter, Senior Counsel employed by National Mutual Life, swore an affidavit which was filed in support of the application. In that affidavit Ms Carter deposed, in summary, as follows:

    On or around 29 November 1989 AXA received from Mr Peter Cox a proposal form applying for insurance over his own life. AXA issued a life insurance policy to Mr Cox under policy numbered 6884,854/2 in February 1990.

    On or around 13 May 1992 AXA received from Mr Cox the original policy it had issued which contained a completed memorandum of transfer transferring ownership of the policy to Tolfield as Trustee for the Romany Superannuation Fund. ASIC historical extracts for Tolfield state that Mr Cox and Ms Cox were the directors of Tolfield up until Mr Cox’s death.

    Mr Cox died on 21 March 2010.

    On or around 9 May 2003 AXA received a letter on Tolfield letterhead with the addressee “Tolfield Pty Ltd Per… Peter J Cox” and signature. The letter contained the following sentence:

I hereby authorise your company to provide details to my accountants Kennedy McLaughlin & Associates regarding the above policies covered by Tolfield Pty Ltd.

    On or around 20 May 2004 AXA received a letter from Mr Cox on Tolfield’s letterhead referring to the policy and stating, inter alia:

This letter should therefore be taken as authority for you to speak to me (Peter John Cox) on all matters connected with the above policies.

    Subsequently, there was correspondence between AXA and Mr Cox in relation to the policy.

    On or around 4 February 2007, AXA sent to Tolfield an annual statement in relation to the policy, which included the following sentence:

We do not currently hold a record of your beneficiary (ies).

    AXA wrote again to Tolfield in 2008 and 2009 stating that it did not have a record of the beneficiary or beneficiaries under the policy.

    On or around 1 April 2009, AXA received a nomination of beneficiary form in respect of the policy, nominating Ms Cox as the preferred beneficiary of the policy.

    On or around 16 December 2009, AXA received a second nomination of beneficiary form in respect of the policy with a cover letter. The cover letter was signed “Peter J Cox”, and included the following sentence:

I believe that the current nominated beneficiary is Suzanne Cox. I enclose herewith a further Nomination of Beneficiary form, to replace the current nomination.

This form nominated “Frances Mary Sheahan” as the preferred beneficiary of the policy. The form also identified the “Proportion of benefit” to be received by Ms Sheahan as “100%”. Next to the words “Policy owner (s) signature” appear the handwritten words “Tolfield Pty Ltd per”, a signature and “Director”.

    On or around 11 January 2010, AXA sent a letter to Tolfield which acknowledged receipt of the second nomination of beneficiary form, and confirmed that the new beneficiary was Ms Sheahan.

    On around 28 April 2010 after Mr Cox’s death, AXA received a letter from Ms Sheahan’s lawyers in relation to the payment of the benefit under the policy.

    On around 4 May 2010, AXA reviewed the first and second nominations of beneficiary. AXA formed the view that the second nomination of beneficiary – that is, the nomination of Ms Sheahan – was incorrect as Tolfield had two signatories at the time, namely Mr Cox and Mrs Cox. AXA wrote to Ms Sheahan’s lawyers on or around 11 May 2010 advising that Ms Sheahan was not a valid beneficiary of the policy.

    On or around 1 June 2010 AXA received a letter from Ms Sheahan’s lawyers disputing AXA’s interpretation of the validity of the nomination of her as the beneficiary of the policy. A further letter from Ms Sheahan’s lawyers disputing AXA’s interpretation was received by AXA on or about 15 June 2010.

    On or around 7 June 2010 AXA received a memorandum signed by Ms Cox as director of Tolfield requesting AXA to pay the total amount payable under the policy to Tolfield as trustee for the Romany Superannuation Fund.

    In August and September 2010 AXA received further letters from lawyers for Tolfield and Ms Sheahan demanding payment of the benefit under Mr Cox’s life insurance policy to their respective clients.

    On or around 22 September 2010 AXA wrote to the lawyers for Tolfield and Ms Sheahan, stating inter alia that the only appropriate action for AXA was to pay the benefit sum into Court pursuant to s 215 of the Life Insurance Act 1995 (Cth).

    Due to the competing claims on the benefit received from Tolfield and Ms Sheahan, AXA was of the opinion that no sufficient discharge could be obtained in respect of the money payable under the policy. Accordingly, AXA seeks a declaration from the Court as to whom it should pay the benefit.

15    The matter was previously in the Victorian Registry of the Court, on the docket of Bromberg J. The amount of $1,872,233 was paid into court on 1 October 2010 pursuant to s 215(1) of the Life Insurance Act 1995 (Cth), leaving extant the determination of entitlement to moneys payable under the policy.

16    Following the directions of 20 October 2010, further directions were made by his Honour on 19 November 2010 and on 2 December 2010.

17    Contentions of Tolfield and Ms Cox as found in the Contentions of Fact and Law filed 3 December 2010 and the Contentions in Reply filed 9 February 2011 include the following:

    Tolfield in its capacity as trustee of the Romany Superannuation Fund is the owner of the policy and is entitled to the whole of the proceeds of the policy.

    The purported nomination of Ms Sheahan as preferred beneficiary under the policy was not valid.

    Tolfield was the trustee of the Romany Superannuation Fund, of which Mr Cox and Ms Cox were members. By consent in writing dated 29 May 1995 Mr Cox and Ms Cox consented to being directors of Tolfield.

    From 13 May 1992 Tolfield in its capacity as trustee of the Romany Superannuation Fund became the owner of the policy.

    Tolfield as trustee of the Romany Superannuation Fund as owner of the policy is entitled to provide instructions to National Mutual Life in respect of the policy.

    The records of National Mutual Life under the policy recorded that there were two signatories of Tolfield in its capacity as trustee of the Romany Superannuation Fund, namely Mr Cox and Ms Cox.

    The nomination of Ms Cox as preferred beneficiary was in writing executed on 20 March 2009 by Mr Cox and Ms Cox in their capacity as the two directors of Tolfield as trustee of the Romany Superannuation Fund.

    The purported nomination of Ms Sheahan as preferred beneficiary under Mr Cox’s life insurance policy was ineffective or invalid because it was not authorised by the terms of the policy, was not authorised by Tolfield or by resolution of its directors, was not authorised by Ms Cox, and was not in accordance with the Trust Deed.

    Mr Cox did not have authority to bind Tolfield by the purported nomination of Ms Sheahan as preferred beneficiary under the policy.

    The purported nomination of Ms Sheahan was beyond the power of Tolfield as trustee of the Romany Superannuation Fund and Mr Cox as director for reasons including:

   It purported to nominate Ms Sheahan as beneficiary of the whole benefit under the policy, when Ms Sheahan was not a member of the Romany Superannuation Fund and was not a dependent of Mr Cox.

   The purported nomination of Ms Sheahan would be contrary to s 62 of the Superannuation Industry (Supervision) Act 1993 (Cth) (“SIS Act”).

   It would be contrary to the covenant in the Trust Deed imposed by s 52(2)(c) of the SIS Act because, inter alia, the purported nomination would not be a performance or exercise of Tolfield’s duty or power in the best interests of the beneficiaries of the Romany Superannuation Fund because Ms Sheahan was not a beneficiary of that fund.

    It would be contrary to personal covenants of Mr Cox referred to in paragraphs 13(c), 13(d) and 15 of the Trust Deed.

    At the time of the alleged nomination of Ms Sheahan on 16 December 2009 Mr Cox was not of sound mind and understanding.

    In the alternative, the purported nomination of Ms Sheahan did not entitle Ms Sheahan to receive or be paid the benefit under the policy or any part thereof because, inter alia, there was no provision of the policy which provided for her nomination as preferred beneficiary.

18    Contentions of Ms Sheahan as found in the Amended Contentions of Fact and Law of the Second Respondent filed 4 February 2011 include the following:

    From a December 1992 or a date prior to then Mr Cox was the director in control of the affairs of Tolfield both in its own capacity and in its capacity as the trustee of the Romany Superannuation Fund.

    Ms Sheahan was a dependant of a member of the Romany Superannuation fund – that is, Mr Cox – prior to Mr Cox’s death.

    It was an express term arising from the conduct of the parties, or alternatively, an implied term of the policy that the owner of the policy could nominate a beneficiary to receive the benefits payable under the policy consequent upon the death of the owner by completing and returning to National Mutual Life a Nomination of Beneficiary form.

    Any purported nomination of Ms Cox as the purported beneficiary was revoked on 16 December 2009 by the replacement nomination of Ms Sheahan as nominated and/or preferred beneficiary, which nomination was accepted by National Mutual Life.

    The marriage of Mr Cox and Ms Cox broke down irretrievably prior to December 1999, the parties separated in July 2009, and Ms Cox obtained an apprehended violence order against Mr Cox thereafter.

    Mr Cox suffered from significant and on-going emotional disabilities from at least 2007 and was abandoned and alienated by his family because of that illness.

    Mr Cox resided with Ms Sheahan at her residence, and an interdependency relationship within the meaning of the SIS Act arose between them as a result.

    The purported transfer of the policy from Mr Cox to Tolfield on 13 May 1992 was ineffective because it was in breach of the articles of association of Tolfield and therefore not binding on Tolfield. Accordingly, the policy remained the property of Mr Cox absolutely until the time of his death. The policy is subject to a declaration of trust in favour of Ms Sheahan by Mr Cox.

    Alternatively, the policy was transferred from Mr Cox to Tolfield but Tolfield held the policy subject to a declaration of trust in favour of Ms Sheahan pursuant to which she is entitled to the proceeds payable pursuant to the policy.

19    I will now consider in turn each paragraph of the notice of motion.

1. Notice of Motion Paragraph 1

20    At the hearing of 12 May 2011 I granted leave to the first and third respondents to file in Court the affidavit of Ms Vicky Stathakis affirmed the same date. In that affidavit and an earlier affidavit affirmed 3 May 2011, Ms Stathakis deposes that she is a senior associate with McCullough Robertson Lawyers, the solicitors for the first and third respondents. At paragraph 2 of her affidavit affirmed 3 May 2011, Ms Stathakis deposes that she has been instructed by the first and third respondents that they wish to amend their Contentions of Fact and Law filed 3 December 2010 in accordance with the draft annexed to that affidavit. At paragraph 3 of her affidavit affirmed 12 May 2011, Ms Stathakis deposes that she has been instructed by the first and third respondents that they wish to amend their Contentions in Reply filed 9 February 2011 in accordance with the draft annexed to that affidavit.

21    Curiously, in paragraph 1 of the notice of motion before the Court, Tolfield and Ms Cox seek the leave of the Court to amend “their Contentions of Fact and Law filed 3 February 2011 and their Contentions in Reply filed 8 February 2011 in accordance with the drafts annexed to the affidavit of Vicky Stathakis to be affirmed”. I say curiously, because:

    According to the Court file:

         The Contentions of Fact and Law of the First and Third respondents was actually filed on 3 December 2010. The Court file records no documents as having been filed on 3 February 2011.

         The Contentions in Reply of the first and third respondents were actually 9 February 2011. The Court file records no documents as having been filed on 8 February 2011.

    The draft annexed to the affidavit of Ms Vicky Stathakis referred to in the notice of motion, which was eventually filed in Court on 12 May 2011, was confined to a draft of the amended Contentions in Reply. In fact, the draft amended Contentions of Fact and Law of the First and Third Respondents was annexed to an affidavit of Ms Stathakis filed 3 May 2011.

    Ms Stathakis in her two affidavits properly identifies the dates of filing of the Contentions of Fact and Law and the Contentions in Reply of the first and third respondents.

22    To that extent, paragraph 1 of the notice of motion does not comprehensively describe what it was that, as became clear at the hearing of 12 May 2011, the first and third respondents actually sought – namely:

    Leave of the Court to amend their Contentions of Fact and Law filed 3 December 2010 in accordance with the draft annexed to the affidavit of Ms Stathakis filed 3 May 2011; and

    Leave of the Court to amend their Contentions in Reply filed 8 February 2011 in accordance with the draft annexed to the affidavit of Ms Stathakis filed 12 May 2011.

23    As also became clear at the hearing however, the second respondent was fully apprised of the order sought by the first and third respondents at the hearing of 12 May 2011 in respect of their contentions of fact and law and their contentions in reply. No issue in respect of the anomalies to which I have referred was raised at the hearing. In that light, I am prepared to proceed to consider whether leave should be granted to amend the Contentions of Fact and Law filed 3 December 2010 and the Contentions in Reply filed 8 February 2011 in accordance with the drafts before the Court attached to Ms Stathakis’ two affidavits.

24    The application is brought pursuant to O 13 r 2(1) of the Federal Court Rules which provides:

(1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.

25    The power conferred by O 13 r 2(1) is broad, and clearly extends beyond pleadings (note comments of Carr J in Pukim Investments Pty Ltd v Johnson [2000] FCA 615 at [33]). In my view O 13 r 2(1) empowers the Court to make orders in respect of amendments to Contentions of Fact and Law and the Contentions in Reply filed by the first and third respondents.

26    The amendments sought by Tolfield and Ms Cox to the two documents are simple.

27    First, Tolfield and Ms Cox seek leave to amend the Contentions of Fact and Law filed 3 December 2010 by deleting paragraph 35, which contains factual allegations as to the capacity of Mr Cox. Ms Sheahan did not oppose this amendment. Accordingly, it is appropriate to make this order.

28    Second, and more controversially, Tolfield and Ms Cox seek to delete all references to Ms Cox in both the Contentions of Fact and Law and the Contentions in Reply. The effect of these amendments would be to transpose Ms Cox to being a submitting party to the proceedings, who will abide by the order of the Court, and result in Tolfield being the only “active” respondent as between itself and Ms Cox. Ms Cox has not sought an order pursuant to O 6 r 9 of the Federal Court Rules that she cease to be a party to the proceedings.

29    Mr McQuade for Tolfield and Ms Cox submitted, in summary, that:

    Ms Cox never sought to claim an entitlement to the benefit of the proceedings;

    the reason the Contentions of Fact and Law and Contentions in Reply were filed and served in the names of both Tolfield and Ms Cox was because they were ordered to do so by Bromberg J;

    in reality, however, no relief is sought by Ms Cox with respect to any claim;

    Ms Sheahan’s contentions do not differentiate between claims of Tolfield and Ms Cox;

    the pleadings have not yet advanced to discovery, and it is an appropriate time to seek leave to amend;

    in relation to the deletion of paragraph 35 from the Contentions of Fact and Law of the first and third respondents, the costs should be either reserved or costs in the proceedings;

    in relation to the other amendments, the better position is to reserve those costs.

30    Ms Sheahan opposes an order to this effect unless Ms Cox formally discontinues her claim under O 22 of the Federal Court Rules and pays costs under O 22 r 28. Mr Cooper SC for Ms Sheahan submitted in summary that:

    Ms Cox has also sought relief in the proceedings and to that extent she is a moving party, not merely a respondent;

    an Order granting leave to amend the Contentions of Fact and Law and the Contentions in Reply as sought by Tolfield and Ms Cox would require Ms Sheahan amend her pleading, resulting in costs thrown away.

31    I am prepared to grant leave to Tolfield and Ms Cox to amend the Contentions of Fact and Law and the Contentions in Reply in accordance with the drafts annexed to the affidavits of Ms Stathakis to delete references to Ms Cox.

32    First, while there is an issue in the proceedings as to whether Ms Cox is the beneficiary of the proceeds of Mr Cox’s policy, the proper claimant in respect of this issue appears to be Tolfield as claimed owner of the policy. Support for this position can be seen in the affidavit of Ms Carter, to the extent that all relevant dealings involving National Mutual appear to have been with Tolfield rather than Ms Cox.

33    Second, I accept the submissions of Mr McQuade that Ms Cox was joined by National Mutual Life as respondent, that directions as to filing and service of all contentions of fact and law were made by his Honour early in the litigation, that the fact that Tolfield and Ms Cox were ordered to file Contentions of Fact and Law did not necessarily mean in the circumstances that Ms Cox was an essential party to the proceedings, and that there was no logic requiring Tolfield and Ms Cox to file their Contentions first. I note also that Bromberg J did not unequivocally accept at that stage that all three respondents were seeking relief. That this is the case is clear from the transcript of the directions hearing of 20 October 2010 before his Honour. I note, for example, TS 20 October 2010 pp 6-7, in particular p 6 ll 43-44.

34    Third, the application has been on foot since only 1 October 2010. Other than in one limited respect, orders for discovery have not yet been made. The current application to amend the Contentions of Fact and Law of the First and third Respondents is early in the proceedings.

35    Fourth, I am not satisfied that, should leave be granted as sought, material amendments would be required to the Amended Contentions of Fact and Law of the Second Respondent. It is difficult to see how the Contentions of Fact and Law filed by the First and Third respondents would have been materially different had Ms Cox not been a party to the proceedings. Further, it is difficult to see how Ms Sheahan’s Amended Contentions of Fact and Law would have taken a different form had Ms Cox not been a party to the proceedings. As Ms Sheahan’s Contentions of Fact and Law presently stand, reference to Ms Cox as a respondent is minimal.

36    Fifth, on the basis that Tolfield is the proper disputant claiming that the beneficiary under the policy is Ms Cox, I am not persuaded that Ms Cox should be required to formally discontinue the proceedings and pay costs under O 22 r 28 of the Federal Court Rules.

37    Finally, I am not satisfied that any material prejudice would be occasioned to Ms Sheahan should leave be granted in respect of the amendments sought. However, as the primary concern of both parties in relation to this issue is clearly costs, and whether Ms Cox should be liable for costs of Ms Sheahan thrown away by the consequent need of Ms Sheahan to further amend her Amended Contentions of Fact and Law, it seems to me appropriate to order that while leave be granted as sought, costs be reserved.

2. Notice of Motion Paragraph 2

38    Pursuant to O 11 r 16, Tolfield seeks to have the following paragraphs of Ms Sheahan’s Amended Contentions of Fact and Law filed struck out:

(a)    paragraph 6;

(b)    alternatively to (a) paragraph 6 to the extent of the words “or alternatively from a date prior to December 1992” and to the extent that paragraph 6 contains contentions regarding any period of time other than 1992 and 2009;

(c)    paragraph 12 to the extent of the words “an express term arising from the conduct of the parties, or alternatively”;

(d)    paragraph 27 to the extent of the words “and negotiated with him a settlement of their respective property rights and entitlements”;

(e)    paragraph 28.

39    Order 11 rule 16 of the Federal Court Rules provides:

Where a pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;

(b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or

(c) is otherwise an abuse of the process of the Court;

the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.

40    The basis of Tolfield’s application to have these paragraphs (or parts thereof) struck out is that Tolfield claims they are embarrassing and have a tendency to cause prejudice to it or delay in the proceeding. “Embarrassing” in this context has the meaning ascribed by O 11 r 16 and includes defects resulting in the pleading being unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against it: Meckiff v Simpson [1968] VR 62 at 70.

(a) Paragraph 6 and (b) “or alternatively from a date prior to December 1992” and to the extent that paragraph 6 contains contentions regarding any period of time other than 1992 and 2009

41    Paragraph 6 of the Amended Contentions of Fact and Law of the Second Respondent reads:

In further response to paragraph 7 the Second Respondent says that from December 1992 or alternatively from a date prior to December 1992 Cox was the director with control of the affairs of the First Respondent both in its own capacity and in its capacity as the trustee of the Romany Superannuation Fund (“the Fund”).

(Paragraph 7 of the Contentions of Fact and Law of the First and Third Respondents reads:

Tolfield had as its directors:

(a)    from 31 December 1992, the Third Respondent; and

(b)    from 20 June 1980 to 21 March 2010, Mr Cox.)

42    On 28 January 2011 McCullough Robertson, the solicitors for Tolfield and Ms Cox, requested further and better particulars of the Contentions of Fact and Law of Ms Sheahan. In relation to paragraph 6, McCullough Robertson requested:

As to paragraph 6 of the Second Respondent’s Contentions, the facts, matters and circumstances relied upon to allege that Peter John Cox (Mr Cox) was the director with control of the affairs of the First Respondent, including but not limited to what is meant by the word ‘control’.

43    Ms Sheahan responded in paragraph 1(a) of the Further and Better Particulars filed 4 February 2011 in the following terms:

Subject to the completion of discovery, as to paragraph 6 of the SRC, the facts matters and circumstances relied upon to allege that Peter John Cox (‘Mr Cox’) was the director with control of the affairs of the First Respondent, including but not limited to what is meant by the word ‘control’, are:-

(a) The word ‘control’ (in the context of ‘control of the affairs of the First Respondent in its own capacity and in its capacity as trustee for the Romany Superannuation Fund (‘the Fund’)) has its natural meaning viz ‘the power of direction; command’ and encompasses authority on behalf of the First Respondent as trustee of the Fund to :-

(i) deal with the Applicant concerning the affairs of the trustee of the Fund;

(ii) act as managing director of the trustee;

(iii) correspondent to and with persons for and on behalf of the trustee;

(iv) have the control of the books and records of the trustee;

(v) sign correspondence, cheques and/or documents for and on behalf of the trustee;

(vi) make payments to and issue receipts for payments received for and on behalf of the trustee;

(vii) conduct the business of the trustee;

(viii) instruct persons providing services to or in relation to the affairs of the trustee;

(xi) to make decisions affecting the affairs of the trustee;

(x) nominate beneficiaries of the Policy issued in respect of the life of Mr Cox;

(xi) make declarations of trust on behalf of the trustee;

(xii) assign the benefit of property of the trustee;

(xiii) nominate beneficiaries of the Fund property;

and to attend to any other matter arising out of or in relation to such without recourse to the Third Respondent except as Mr Cox thought necessary.

(b) Mr Cox’s professional qualifications were as a solicitor, practising at all relevant times principally in the area of taxation and commercial law. Mrs Cox had no such qualifications.

44    In relation to paragraph 6, Tolfield submits in summary:

    the allegation is simply a conclusion without providing any material facts;

    control for the entire period from December 1992 to the death of Mr Cox is not relevant;

    the contention that control occurred from some unspecified date prior to December 1992 is embarrassing, as it could be any date over an 18 year period from the incorporation of Tolfield in 1980;

    there is no issue in the contentions as to Tolfield trading in its own right;

    the particulars provided do not overcome these complaints.

45    Ms Sheahan submits in summary:

    Paragraph 6 alleges that the deceased was the director of the trustee who controlled its affairs by performing the acts identified in the particulars, in other words he controlled the “business affairs of a trust” as that expression is defined in s 53AD of the Corporations Act 2001 (Cth).

    Whether further particulars should, or should not, be ordered depends upon the “good sense of the thing”.

46    In my view the words “or alternatively from a date prior to December 1992” in paragraph 6 should be struck out, although Ms Sheahan should be allowed an opportunity to amend this aspect of Paragraph 6 of the Amended Contentions of Fact and Law. Otherwise, I do not consider that paragraph 6 should be struck out as embarrassing. I form this view for the following reasons.

47    First, in relation to the words “or alternatively from a date prior to December 1992”, I consider there is merit in Mr McQuade’s submission that, in referring to an indefinite period prior to 1992, paragraph 6 has a tendency to cause prejudice, embarrassment or delay in the proceeding. It appears from the material before the Court that Tolfield was incorporated in 1980, with a differently constituted Board of Directors (although including Mr Cox) during the period 1980-1992 compared with the period after 1992 (when Ms Cox was also a director). Paragraph 6 is open-ended in relation to the time prior to December 1992, and to that extent is uncertain. However assuming that paragraph 6 relates to the entire history of the company from incorporation, there appears to be little relevance to the current proceedings in determining the role of Mr Cox in respect of the management of Tolfield in, for example, 1980. I am also cognisant of the potentially oppressive effects on the first respondent of requiring it to undertake detailed searches of its records in relation to the conduct of the business between 1980 and 1992, which would be required on the current state of paragraph 6.

48    The question whether Mr Cox treated Tolfield as his own company between 1992 and 2009 is, however, relevant. Not only does this period encompass the time during which Ms Cox was also a director of Tolfield, but events took place during this time of relevance to the current proceedings.

49    Second – otherwise paragraph 6 is tolerably clear. Paragraph 6 states, inter alia, that Mr Cox was the director with control of the affairs of the First Respondent. The concept of the affairs of a company being “controlled” in a certain manner is well-known in law. This is clear from many cases including Kazar v Duus [1998] FCA 1378, King v Milpurrurru, [1996] FCA 1381 at [36], [47], re ABC Learning Centres Limited; application by Walker (No. 8) [2009] FCA 994 at [15], Secretary of State of Trade and Industry v Deverell [2001] Ch 340 at 354, ACCC v Dynacast (Int) Pty Ltd [2007] FCA 429 at [70], Re Sharrment Pty Limited [1988] FCA 179 at [21], Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 at [166], Fairway Estates Pty Ltd v Federal Commissioner of Taxation (1970) 123 CLR 153 at [34], Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [128]. “Control of the affairs of a company” is also recognised by the Corporations Act, for example s 53, s 437A, s 588V(1)(d)(ii), and the Note to s 763B. I see little difficulty extending recognition of this concept to control of the business affairs of a trust, and note the description of the “business affairs of a trust” in s 53AD of the Corporations Act.

50    Third, the Further and Better Particulars of Contentions of Fact and Law of the Second Respondent filed 4 February 2011 elaborate upon the meaning of “control” within the meaning of paragraph 6 and explain the manner in which Mr Cox allegedly “controlled” Tolfield. While I accept that Tolfield is entitled to be apprised of the case against it, as Isaacs J explained in R v Associated Northern Collieries (1910) 11 CLR 738 at 740-741 the opposite party is not to be told the mode by which the case is to be proved against it. In the Further and Better Particulars Ms Sheahan has given a detailed explanation of her allegations of “control” by Mr Cox. The underlying principle in respect of pleadings is that the case of each of the parties is adequately exposed to the other, and it is important to maintain a sense of balance in the detail of particulars sought and ordered: French J in Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd [2006] FCA 1395 at [17]. In my view Ms Sheahan’s claim in this respect is clear and adequately conveyed to the other parties. It is difficult to see how an order for further particularisation would do other than require Ms Sheahan’s contentions to stray into the evidence upon which she bases her claim. Such a step is not warranted: O 11 r 2(a) Federal Court Rules.

51    Fourth, I am not persuaded that the use of the word “encompasses” in paragraph 1(a) of the Further and Better Particulars of Contentions of Fact and Law of the Second Respondent is in any way vague or uncertain.

52    Fifth, I do not consider that the reference to Mr Cox acting as managing director of the trustee in paragraph 1(a)(ii) of the Further and Better Particulars of Contentions of Fact and Law of the Second Respondent requires further particularisation at this stage of the proceedings. There is no claim that Mr Cox was actually formally appointed to the role of managing director, so as to have the actual authority associated with the role. It follows that the claim of Ms Sheahan is that Mr Cox acted in the role of managing director of Tolfield and had the implied and/or ostensible authority of that role. Further clarification of this claim will emerge following the provision of evidence. Whether this claim can be substantiated by evidence is an issue for trial.

53    Accordingly, I consider that the appropriate order is that paragraph 6 to the extent of the words “or alternatively from a date prior to December 1992” should be struck out. Otherwise I consider that no orders should be made in respect of paragraph 6. It also follows for the reasons I have given in respect of the existing acceptability of paragraph 6 of Ms Sheahan’s amended contentions that paragraphs 2(a) and 3 of the notice of motion should be dismissed.

(c) Paragraph 12 to the extent of the words “an express term arising from the conduct of the parties, or alternatively”

54    Paragraph 12 of the Amended Contentions of Fact and Law of the Second Respondent reads:

The Second Respondent admits that the written terms of the policy are as alleged in paragraph 20 of the Statement but says that it was an express term arising from the conduct of the parties, or alternatively, an implied term of the policy that the owner of the policy could nominate a beneficiary to receive the benefits payable under the policy consequent upon the death of the owner by completing and returning to the applicant a Nomination of Beneficiary form.

(Paragraph 20 of the Contentions of Fact and Law of the First and Third Respondents reads:

The terms of the Policy are contained in the document titled ‘Insurance Policy’ being Exhibit VC-2 to the affidavit of Ms Carter sworn on 30 September 2010.

Particulars

Affidavit of Ms Carter paragraph 6

Email 5 November 2010 from National Mutual (Kerry Davies))

55    On 28 January 2011 McCullough Robertson requested further and better particulars of matters relating to the implied term alleged by Ms Sheahan. On 4 February 2011 in Further and Better Particulars provided, Ms Sheahan responded in the following terms:

3. As to paragraph 12 of the SRC:-

(a) The facts matters and circumstances relied upon to allege that there was an implied term of the Policy that “… the owner of the Policy could nominate a beneficiary to receive the benefits payable under the Policy consequent upon the death of the owner by completing and returning to the Applicant a Nomination of Beneficiary form” (“the implied terms”) are the nature of the Policy and the presumed intention of the parties to be deduced from their actions in relation to the nomination of a beneficiary.

PARTICULARS

(i)    The Policy was at all material times a “life policy” as defined at section 4 (1) and for the purposes of the Life Insurance Act 1945.

(ii)    Mr Cox’s was the life insured under the Policy for the purposes of the Life Insurance Act 1945.

(iii)    The Policy is a “contract of life insurance” as defined at section11 of and for the purposes of the Insurance Contracts Act 1984.

(iv)    The written terms of the Policy as alleged in paragraph 20 of the First and Third Respondents Contentions of Fact (“the Statement”)(“the written terms”) did not expressly or impliedly exclude the implied terms.

(v)    The implied terms are not inconsistent with the written terms.

(vi)    Item 5 of the Key Executive Plan (Annexure KEP), which forms part of the written terms, expressly states that, inter alia, “… the [Policy] is issued subject to the Life Insurance Act 1954, the Insurance Contracts Act 1984 and any other act of Parliament controlling the terms of life insurance contracts, the requirement of that act will prevail.”

(vii)    On or about 4 February 2007 the Applicant sent to the First Respondent (who it presumed to be the owner of the Policy) an annual statement in relation to the Policy advising that, inter alia, it “… did not currently hold a record of [the] beneficiary(ies)…” to whom the money under the Policy should be paid in the case of the death of Mr Cox.

(viii)    On or about 4 February 2007 and prior to 3 February 2008, a premium was paid in relation to the renewal of the Policy.

(ix)    On or about 3 February 2008 the Applicant sent to the First Respondent (who it presumed to be the owner of the Policy) an annual statement in relation to the Policy advising that, inter alia, it “… did not currently hold a record of [the] beneficiary(ies)…” to whom the money under the Policy should be paid in the case of the death of Mr Cox.

(x)    Subsequent to 3 February 2008 and prior to 3 February 2009, a premium was paid in relation to the renewal of the Policy.

(xi)    On or about 2 February 2009 the Applicant sent to the First Respondent (who it presumed to be the owner of the Policy) an annual statement in relation to the Policy advising that, inter alia, it “… did not currently hold a record of [the] beneficiary(ies)…” to whom the money under the Policy should be paid in the case of the death of Mr Cox.

(xii)    Due to the provisions of section 48A(2)(b) Insurance Contracts Act 1984, the money paid under the Policy could never at any material time have formed part of the estate of Mr Cox. THIS PARA IS (XV) IN OTHER ONE. OTHERWISE DIFFERENT FROM THIS PARA ONWARDS

(b) As to paragraph 12 of the SRC, the request made as to same is not a (sic) appropriate and/or a proper request as same is evidence and not particular.

56    On 4 February 2011 McCullough Robertson made a second request for further and better particulars of matters relating to the express term alleged by Ms Sheahan in paragraph 12, in the following terms:

As to paragraph 12 of the Amended Contentions, the First and Third Respondents request that the Second Respondent provide the following further and better particulars:

(a)    the facts, matters and circumstances relied upon to allege that there was an express term of the policy on the terms alleged;

(b)    the usual particulars of all facts referred to in paragraph (a) above; and

(c)    particulars of the alleged express term, including whether the Applicant was required to give effect to the nomination and, if so, whether the Applicant was only required to do so if the nomination complied with the Superannuation Industry (Supervision) Act 1993 (Cth).

57    In paragraph 1 of the Further and Better Particulars of Amended Contentions of Fact and Law of the Second Respondent Provided in Response to the Request by the First and Third Respondents dated 4 February 2011, which was filed 7 February 2011, Ms Sheahan further particularised paragraph 12 in relation to the express term alleged, in the following terms:

1. Subject to the completion of discovery, as to paragraph 12, as to paragraph 12 of the SRC,

(a) The facts, matters and circumstances relied upon to allege that there was an express term of the Policy on the terms alleged, or to the effect, that “… the owner of the Policy could nominate a beneficiary to receive the benefits payable under the Policy consequent upon the death of the life insured by the owner completing and returning to the Applicant a Nomination of Beneficiary form” (“the express terms”) are the nature of the Policy and the express statements and conduct of the Applicant, Mr Cox and the First Respondent and the intentions of the parties to be deduced from their actions in relation to the nomination of a beneficiary.

PARTICULARS

(i)    The Policy was at all material times a “life policy” as defined at section 4 (1) and for the purposes of the Life Insurance Act 1945.

(ii)    Mr Cox’s was the life insured under the Policy for the purposes of the Life Insurance Act 1945.

(iii)    The Policy is a “contract of life insurance” as defined at section11 of and for the purposes of the Insurance Contracts Act 1984.

(iv)    The written terms of the Policy as alleged in paragraph 20 of the First and Third Respondents Contentions of Fact (“the Statement”)(“the written terms”) did not expressly or impliedly exclude the implied terms.

(v)    The express terms are not inconsistent with the written terms.

(vi)    Item 5 of the Key Executive Plan (Annexure KEP), which forms part of the written terms, expressly states that, inter alia, “… the [Policy] is issued subject to the Life Insurance Act 1954, the Insurance Contracts Act 1984 and any other act of Parliament controlling the terms of life insurance contracts, the requirement of that act will prevail.”

(vii)    On or about 4 February 2007 the Applicant sent to the First Respondent (who it presumed to be the owner of the Policy) an annual statement in relation to the Policy advising that, inter alia, it “… did not currently hold a record of [the] beneficiary(ies)…” to whom the money under the Policy should be paid in the case of the death of Mr Cox.

(viii)    Subsequent to 4 February 2007 and prior to 3 February 2008, a premium was paid in relation to the renewal of the Policy.

(ix)    On or about 3 February 2008 the Applicant sent to the First Respondent (who it presumed to be the owner of the Policy) an annual statement in relation to the Policy advising that, inter alia, it “… did not currently hold a record of [the] beneficiary(ies)…” to whom the money under the Policy should be paid in the case of the death of Mr Cox

(x)    Subsequent to 3 February 2008 and prior to 3 February 2009, a premium was paid in relation to the renewal of the Policy

(xi)    On or about 2 February 2009 the Applicant sent to the First Respondent (who it presumed to be the owner of the Policy) an annual statement in relation to the Policy advising that, inter alia, it “… did not currently hold a record of [the] beneficiary(ies)…” to whom the money under the Policy should be paid in the case of the death of Mr Cox.

(xii)    At some time during or prior to April 2009, the Applicant provided to Mr Cox a Nomination of Beneficiary form by which the owner of the Policy could nominate a beneficiary to receive the benefits payable under the Policy consequent upon the death of the life insured by the owner completing and returning such form to the Applicant (“an AXA nomination form”)

(xiii)    On or about 20 March 2009, Mr Cox for an on behalf of the First Respondent, completed and returned to the Applicant an AXA nomination form nominating Suzanne Cox to be the beneficiary to receive the benefits payable under the Policy consequent upon the death of Mr Cox (Mr Cox being the life insured under the Policy).

(xiv)    On or about 16 December 2009, Mr Cox for an on behalf of the First Respondent, completed and returned to the Applicant an AXA nomination form nominating Frances Sheahan to be the beneficiary to receive the benefits payable under the Policy consequent upon the death of Mr Cox (Mr Cox being the life insured under the Policy).

(xv)    Due to the provisions of section 48A(2)(b) Insurance Contracts Act 1984, the money paid under the Policy could never at any material time have formed part of the estate of Mr Cox.

(b) As to paragraph 12 of the ASRC, and the request made at 1(b) of the Second Request as to the same, given the above, the request made is not an appropriate and/or proper request as same is evidence and not particulars.

(c) As to paragraph 12 of the ASRC, and the request made at 1(c) of the Second Request as to same:

(i)    The Applicant was required to give effect to the nomination of 16 December 2009 for reasons already provided.

(ii)    The remainder of such request is duplicitous, repetitive and vague and therefore same is not an appropriate and/or a proper request.

58    In relation to paragraph 12 Tolfield submits in summary:

    Paragraph 12 to the extent of the words “an express term arising from the conduct of the parties” is embarrassing or untenable and ought to be struck out.

    The written policy entered into in 1989 or 1990 set out the express terms.

    Paragraph 12 does not identify whether the conduct relied upon occurred before or after the policy being entered. The only conduct particularised by Ms Sheahan occurred at the earliest in 2007, approximately 17 or 18 years after the policy was entered into.

    The terms of a contract must be incorporated at the time of contract unless there is a subsequent variation of the contract. Here there is no allegation of variation.

59    Ms Sheahan submits in summary that the complaint is misconceived because a term arising by conduct after the contract was entered into is still a term of the original contract, and in any event this is a question of law for determination at trial.

60    The words “an express term arising from the conduct of the parties, or alternatively” in paragraph 12 should be struck out as embarrassing or untenable. I have formed this view for the following reasons.

61    First, on the material before the Court the express terms of the policy are found in that policy which was entered into in 1989 or 1990. While express terms of a contract can be modified by, for example, subsequent correspondence and discussion (Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at [49]) there is no allegation by the second respondent of variation of the terms of the Policy or a collateral agreement or equitable principles to support the claim that there was an express term arising from the conduct of the parties in relation to the nomination of beneficiaries.

62    Second, the second respondent relied on comments of the High Court in Concut Pty Ltd v Worrell (2000) 176 ALR 693 to support the submission that a term arising after the contract was entered into is still a term of the original contract. In particular, reference is made to paragraph [19] of the joint judgment of Gleeson CJ, Gaudron and Gummow JJ where their Honours observed:

The relevant principles are well settled. In Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd, Gleeson CJ, Gaudron, McHugh and Hayne JJ said:

“When the parties to an existing contract enter into a further contract by which they vary the original contract, then, by hypothesis, they have made two contracts. For one reason or another, it may be material to determine whether the effect of the second contract is to bring an end to the first contract and replace it with the second, or whether the effect is to leave the first contract standing, subject to the alteration. For example, something may turn upon the place, or the time, or the form, of the contract, and it may therefore be necessary to decide whether the original contract subsists.”

Their Honours went on to refer to the judgment of Taylor J in Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd. Taylor J had rejected submissions that (a) “it is impossible by a subsequent agreement, merely, to vary or modify an existing contract” and (b) “[an] agreement which purports to vary an existing contract operates ... first of all to abrogate entirely the existing contractual relationship and, then, to reinstate the terms of the old contract as varied or modified by the new agreement”. His Honour, to the contrary, accepted the propositions that (a) the earlier contract might be rescinded altogether, the determining factor being the intention of the parties disclosed by the later agreement; (b) partial rescission is a variation, not the destruction, of the contractual relationship between the parties; and (c) the earlier contract may be varied by way of (i) partial rescission with or without the substitution of new terms for those rescinded and (ii) the addition of new terms with or without any partial rescission at all. In Tallerman, Kitto J spoke in terms which involved acceptance of propositions (a) and (b) as identified above, adding that whilst “in strict logic” a variation may be a new contract, “the discharge of an old contract is a matter of intention”.

63    However in my view the principles explained by their Honours support a finding against the second respondent in this respect. Any subsequent conduct to modify express terms of a contract must constitute, for example, a later agreement or conduct amounting to a variation or rescission or partial rescission of the contract to which the parties have agreed. Paragraph 12 makes no such claim in support of the contention that an express term arose from the conduct of the parties in this case.

64    Third, while Ms Sheahan sought to particularise her allegations concerning the existing of an express term as to nomination of a beneficiary to receive the benefits payable under the policy as contended in paragraph 12, there is clearly extensive overlap between those particulars and the particulars provided in relation to the allegation of an equivalent implied term. A comparison of the two sets of particulars, which I have set out, shows that the differences between them are found only in respect of paragraphs 1(a)(xii), (xiii) and (xiv) of the particulars filed 7 February 2011 in relation to the express term. Paragraphs 1(a)(i)-(xi) and (xv) of the particulars filed 7 February 2011 are otherwise identical with the particulars filed 4 February 2011 supporting the contention that an implied term exists. Paragraphs 1(a)(xii), (xiii) and (xiv) of the particulars filed 7 February 2011 are a further recitation of events which took place in 2009. However in my view, these additional particulars are potentially relevant to the allegation of an implied term as to nomination of a beneficiary to receive the benefits payable under the policy as contended in paragraph 12. In the absence of an allegation of variation of the policy or a collateral agreement these facts do not support the existence of an express term as alleged by Ms Sheahan.

65    Accordingly, I accept the submission of Tolfield that the words “an express term arising from the conduct of the parties, or alternatively” in paragraph 12 should be struck out.

(d) Paragraph 27 to the extent of the words “and negotiated with him a settlement of their respective property rights and entitlements”

66    Paragraph 27 of the Amended Contentions of Fact and Law of the Second Respondent reads:

The parties separated in July 2009 and the third Respondent thereafter commenced proceedings against Cox and obtained an apprehended violence order against him, and negotiated with him a settlement of their respective property rights and entitlements.

67    On 28 January 2011 McCullough Robertson requested further and better particulars of paragraph 27 in the following terms:

As to paragraph 27:

(a)    the usual particulars of

(i)    the alleged separation

(ii)    the alleged negotiations between the Third Respondent and Mr Cox; and

(iii)    the alleged ‘settlement’ of ‘property rights and entitlements’,

(b)    state what is meant by the words ‘their respective property rights and entitlements.

68    In paragraph 8 of the Further and Better Particulars of Contentions of Fact and Law of the Second Respondent Ms Sheahan particularised paragraph 27 in the following terms:

As to paragraph 27 of the SRC, the request made as to same is not a proper request as same is evidence and not particulars or alternatively such particulars cannot be provided until after discovery has been completed.

69    In relation to paragraph 27, Tolfield submits in summary as follows:

    the impugned words are uncertain and ambiguous;

    the allegation is made in broad terms without a proper factual basis.

70    Ms Sheahan submits in summary that the words impugned clearly refer to settlement in respect of the competing claims of the deceased and his wife to the assets acquired during their marriage, and anything more is a request for evidence.

71    At the hearing before me on 12 May 2011 it became clear that the reference to the claimed settlement of the respective property rights and entitlements of Mr Cox and Ms Cox in paragraph 27 of Ms Sheahan’s contentions extended to rights and entitlements in respect of Mr Cox’s life insurance policy. To the extent that Ms Sheahan’s case is that Mr Cox and Ms Cox had reached an agreement in respect of the life insurance policy, paragraph 27 in its current form is both uncertain and inadequate, and does not apprise the opposite party of the case it will be called upon to meet.

72    Accordingly, I am not persuaded that the request for further and better particulars in respect of paragraph 27 was a request for evidence.

73    Order 12 rule 5 of the Federal Court Rules empowers the Court to order a party to file and serve on any other party particulars of any claim, defence or other matter stated in his pleading. In my view the better approach is to require Ms Sheahan to file further and better particulars of her contentions in paragraph 27. This is an alternative to striking out which has been advanced by the first respondent in paragraph 4 of the notice of motion. In my view it will give the second respondent the opportunity to explain her contention in paragraph 27, and give Tolfield the opportunity to be apprised of that case.

(e) Paragraph 28

74    Paragraph 28 of the Amended Contentions of Fact and Law of the Second Respondent reads:

Cox suffered from significant and on-going emotional disabilities from at least 2007 and was abandoned and alienated by his family because of that illness.

75    On 28 January 2011 McCullough Robertson requested further and better particulars of paragraph 28 in the following terms:

As to paragraph 28:

(a)    particulars of Mr Cox’s alleged significant and on-going emotional disabilities; and

(b)    the usual particulars of the alleged abandonment and alienation of Mr Cox, including the identity of those members of Mr Cox’s family alleged to have abandoned or alienated Mr Cox; and

(c)    facts, matters and circumstances relief upon to allege that Mr Cox was abandoned, and/or alienated because of his alleged emotional disabilities and/or ‘illness’.

76    In paragraph 9 of the Further and Better Particulars of Contentions of Fact and Law of the Second Respondent Ms Sheahan particularised paragraph 28 in the following terms:

As to paragraph 28 of the SRC, the request made as to same is not a proper request as same is evidence and not particulars.

77    In relation to paragraph 28 Tolfield submits that paragraph 28 should be struck out because, in summary, the contention is drafted in very broad terms and Tolfield is not in a position to know what case it must meet. Ms Sheahan submits in summary that the other respondents had pleaded that Mr Cox was insane, the pleaded case for trial clearly emerges from paragraphs 26 to 30, and anything more is simply to provide the evidence which will be adduced at trial.

78    I note that this contention Tolfield that Mr Cox was insane has been withdrawn.

79    At the hearing Mr Cooper SC for Ms Sheahan submitted, inter alia:

If we are to lead evidence he was alienated because his son wouldn’t talk to him, his daughter treated him as an oddity, his wife wouldn’t speak to him, that’s simply the evidence by which one proves alienation. It’s quite clear. He was just, he was regarded by his family as being insane and he was shunned by them, that’s the case and he had to go and live with his sister accordingly. (TS 12 May 2011 p 63 ll 41-46)

80    This elaboration of the contention in paragraph 28 is illustrative of the fact that the contention in paragraph 28 does not apprise Tolfield of the case it must meet. None of the allegations to which Mr Cooper SC referred are pleaded in paragraph 28. In my view they are not simply evidence to support the contention in paragraph 28 – they are material facts which should be pleaded. It is clear from paragraphs 26 to 30 of the Amended Contentions of Fact and Law of the Second Respondent that a key aspect of Ms Sheahan’s claim is that Mr Cox caused the nominated beneficiary of his life insurance policy to be changed because of his alleged treatment by his family. It is appropriate that such an important claim be properly particularised.

81    To that extent the better approach is not to order paragraph 28 be struck out, but to require Ms Sheahan to further particularise the contention in that paragraph in accordance with the request for particulars of 28 January 2011. I note that, at the hearing on 12 May 2011, the first respondent seemed to accept this as a viable option: see TS 12 May 2011 p 64 ll 1-2.

Notice of motion paragraph 3

82    In light of my findings in respect of paragraph 6 of the Amended Contentions of Fact and Law of the Second Respondent and in particular paragraphs 2(a) and (b) of the notice of motion, the appropriate order is to dismiss the notice of motion so far as concerns paragraph 3.

Notice of motion paragraph 4

83    As I indicated earlier in my reasons, it is appropriate to make the order sought by Tolfield that the Second Respondent file and serve further and better particulars of the contentions in paragraph 27 of the Second Respondent’s Amended Contentions of Fact and Law dated 4 February, in accordance with the requests for such particulars dated 28 January 2011.

Notice of motion paragraph 5

84    Tolfield seeks an order pursuant to O 10 r 1(2) and O 12 r 5 of the Federal Court Rules that the second respondent file and serve further and better particulars of the contentions in paragraph 29 of the Amended Contentions of Fact and law dated 4 February 2011, in accordance with paragraphs 10(c), 10(d) and 10(e) of the request for particulars dated 28 January 2011.

85    Paragraph 29 reads as follows:

By reason of the foregoing facts Cox resided with the Second Respondent at her residence upon the basis that:-

(a)    he could reside with her whenever he desired;

(b)    they would support each other financially concerning the additional costs resulting from co-habitation;

(c)    the Second Respondent would support him domestically and provide care and assistance to him;

(d)    the Second Respondent would provide to him the love, support and assistance denied to him by his family.

86    On 28 January 2011 McCullough Robertson served a request for further and better particulars. In relation to paragraph 29, and so far as relevant to these proceedings, the request included the following paragraphs:

10 (c) In relation to the allegation that Mr Cox and the Second Respondent would support each other “financially concerning the additional costs resulting from co-habitation”:

(i)    particulars of the “additional costs resulting from co-habitation”;

(ii)    state whether or not Mr Cox and the Second Respondent did support each other financially;

(iii)    if Mr Cox did support the Second Respondent financially, the usual particulars of such support; and

(iv)    if the Second Respondent did support Mr Cox financially, the usual particulars of such support.

10(d) In relation to the allegation that the Second Respondent would support Mr Cox domestically and provide care and assistance to him :

(i)    state whether or not the Second Respondent did support Mr Cox domestically;

(ii)    if she did, the usual particulars of such support;

(iii)    state whether or not the Second Respondent did provide care and assistance to Mr Cox;

(iv)    if she did, the usual particulars of such care and assistance; and

10(e) in relation to the allegation that the Second Respondent would provide to Mr Cox the love, support and assistance denied to him by his family:

(i)    state whether or not the Second Respondent did provide those things to him;

(ii)    if she did, provide particulars of the period over which the Second Respondent provided those things to Mr Cox, and state whether or not she provided those things to Mr Cox for the whole of the alleged period; and

(iii)    the facts, matters and circumstances relied upon to allege that Mr Cox was denied love, support and assistance from his family.

87    So far as currently relevant to the proceedings, in paragraph 10 of the Further and Better Particulars of Contentions of Fact and Law of the Second Respondent Ms Sheahan particularised paragraph 29 in the following terms:

…

…

(c) As to paragraphs 10(c), 10(d) and 10(e), the requests made as to same are not proper requests as same are as to evidence and not particulars.

88    In relation to paragraph 29, Tolfield submits in summary:

    the contention in paragraph 29 is used to found a relationship of interdependency in paragraph 31 of the Amended Contentions of Fact and Law of the Second Respondent

    on the present state of the contentions it is not possible to link the “foregoing facts” referred to in paragraph 29 with the contention that Mr Cox resided with Ms Sheahan on the basis contended

    It is uncertain from the contentions whether the matters alleged in paragraphs 29(b), 29(c) and 29 (d) actually occurred or that there was some understanding to be inferred from the “foregoing facts” that Mr Cox may reside with the Ms Sheahan on the basis alleged. Sub-paragraphs 29(a) to (d) use “could” and “would” and not “did”.

89    In summary, Ms Sheahan submits that the particulars which have been provided adequately explain the allegation, and to go beyond this would be to seek evidence.

90    At the hearing, Mr Cooper SC for Ms Sheahan also submitted that the events described in paragraph 29 actually occurred (TS 12 May 2011 p 69 l 30), and to that extent the allegation in paragraph 29 is clear.

91    In my view Tolfield is entitled to be formally informed of the case it is required to meet. This includes not only a properly drafted contention as to the events Ms Sheahan alleges occurred in relation to paragraph 29, but further particulars of the broad allegations in paragraph 29 of the alleged arrangements between Mr Cox and Ms Sheahan. I am not satisfied that the contention in paragraph 29 is sufficiently clear that no further particularisation is necessary. I accept the submission of Tolfield that it is not certain whether the matters alleged in paragraphs 29(b), 29(c) and 29(d) actually occurred.

92    It follows that I am prepared to make the order sought by Tolfield in respect of paragraph 29 of the Amended Contentions of Fact and Law of the Second Respondent.

Costs

93    Other than in relation to an order granting leave to the first and third respondents to amend their contentions of fact and law, I have made no orders as to costs. In respect of the balance of the notice of motion I will provide the parties with the opportunity to consider my reasons for judgment before they make submissions as to where costs properly should lie.

Associate:

Dated:    22 June 2011