Federal Court of Australia

Zandona v Charter Financial Planning Ltd [2026] FCA 1329

ORDERS

THE COURT ORDERS THAT:

1.    The Cross-Respondent, Australian Unity Life Bonds Ltd, has leave to withdraw the admissions identified in proposed order 1 of its amended interlocutory application lodged for filing on 17 August 2026.

2.    By 4.00pm on 14 September 2026, Australian Unity file and serve an amended defence to the amended statement of cross-claim which:

(a)    accords substantially with the proposed amended defence contained in Exhibit SHK-1 to the affidavit of Stephen Howard Klotz affirmed 17 August 2026; and

(b)    rectifies the errors identified at paragraphs [26] (8th Withdrawal Form) and [38] of the reasons for judgment; but

(c)    omits paragraph 44.

3.    By 4.00pm on 28 September 2026, Australian Unity may apply for leave to file and serve a further amended defence pleading a limitation defence. Any such application must be accompanied by the proposed further amended defence upon which Australian Unity relies, both of which must be emailed to the Associate to Cheeseman J shortly after filing.

4.    Any proposed further amended defence filed in support of an application under Order 3 must identify:

(a)    the statutory or equitable limitation principle relied upon;

(b)    the material facts and relevant dates said to engage that principle; and

(c)    separately, the basis upon which the defence is said to answer Charter Financial Planning Ltd’s claim under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and its alternative claim for contribution in equity.

5.    Australian Unity pay Charter Financial’s costs occasioned by the withdrawal of the deemed admissions and the amendments authorised by these orders, including any costs thrown away by reason of the amended interlocutory application.

6.    Subject to Order 5, there otherwise be no order as to the costs of the amended interlocutory application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    In the substantive proceeding, Maryanne Toscan alleges that Charter Financial Planning Ltd is liable to her in respect of withdrawals from her IOOF WealthBuilder Investment Account said to have been caused fraudulently by Thomas Hurst. Charter Financial cross-claims against Australian Unity Life Bonds Ltd as a joint tortfeasor for contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) or in equity in respect of any liability that Charter Financial has to Ms Toscan arising from those withdrawals.

2    These reasons concern an interlocutory dispute about the pleadings relating to Charter Financial’s cross-claim. They do not concern the merits of Ms Toscan’s claims or the cross-claim.

3    By an amended interlocutory application lodged for filing on 17 August 2026, Australian Unity seeks leave under r 26.11 of the Federal Court Rules 2011 (Cth) to withdraw admissions deemed to have been made by the operation of r 16.07, and leave to file an amended defence to Charter Financial’s amended statement of cross-claim.

4    The deemed admissions arise because Australian Unity pleaded that it “does not admit” certain allegations, rather than stating that it did not know and therefore could not admit them. Charter Financial consents to the withdrawal of the deemed admissions and, subject to two objections, to Australian Unity having leave to amend its defence. It is unnecessary to describe the proposed amendments that are not in dispute.

5    Three issues remain for determination:

(1)    whether Australian Unity should have leave to plead that it does not know, and therefore cannot admit, whether specified areas of certain Withdrawal Forms appear to have been altered and whether any such alterations were initialled;

(2)    whether leave to file the proposed amended defence should be conditioned on the omission of paragraph 44 (a limitation defence) or whether paragraph 44 should be reformulated to identify the legal and factual basis of the limitation defence, notwithstanding that paragraph 44 forms part of the existing defence and is not itself amended; and

(3)    the appropriate orders as to the costs occasioned by the amendments and the costs of the interlocutory application.

6    Both parties have filed written submissions and written submissions in reply. As I indicated at the last case management hearing, the application may appropriately be determined on the papers.

EVIDENCE

7    Australian Unity relies on two affidavits of Stephen Klotz, a partner of Hall & Wilcox, affirmed on 28 May 2026 and 17 August 2026, together with Exhibit SHK-1 to the second affidavit.

8    Charter Financial relies on the affidavit of Suzanne Emma Craig, Partner at Wotton Kearney, affirmed 24 August 2026 and Exhibit SEC-1 to that affidavit.

PROCEDURAL BACKGROUND

9    For the purpose of this application, the relevant procedural background is as follows.

10    Charter Financial filed an amended statement of cross-claim on 19 March 2026, and Australian Unity filed its defence to that pleading on 10 April 2026. In its defence, Australian Unity used the expression “does not admit” in response to a number of allegations. Mr Klotz gives evidence that the failure to use the words prescribed by r 16.07(3) was inadvertent and resulted from the legal representatives overlooking r 16.07.

11    On 12 May 2026, Charter Financial filed and served its reply on Australian Unity and asserted that the purported non-admissions operated as admissions under r 16.07.

12    Australian Unity sought Charter Financial’s consent to amend its defence on 15 May 2026 and offered to pay Charter Financial’s costs occasioned by the amendment. Australian Unity followed up on 19 and 22 May 2026 before filing the application. Charter Financial did not respond.

13    On 28 May 2026, Australian Unity filed this interlocutory application seeking leave to withdraw the deemed admissions. On 17 August 2026, Australian Unity filed an amended interlocutory application and relied on a revised proposed amended defence. The revised pleading substituted conforming non-admissions for the non-conforming deemed admissions and retained the limitation defence that had been pleaded in paragraph 44 of the existing defence.

APPLICABLE PRINCIPLES

14    Rule 16.07 governs the manner in which a party must respond to allegations of fact in another party’s pleading. A party must specifically admit or deny each allegation. An allegation that is not specifically denied is taken to be admitted: rr 16.07(1) and (2). A party may instead state that it does not know and therefore cannot admit a particular fact, in which case the fact is taken to be denied: rr 16.07(3) and (4).

15    The note to r 16.07 explains that the rule requires a party to address each material fact pleaded by an opposing party and that a general denial or evasive answer is insufficient. In this way the rule serves both to identify the facts that are in dispute and to prevent a party from avoiding engagement with an allegation to which it is able to respond.

16    Rule 26.11(2) provides that a party must not withdraw an admission or other plea benefiting another party unless that party consents or the Court gives leave. As mentioned, Charter Financial now consents to Australian Unity withdrawing the admissions deemed to have been made by operation of r 16.07(2). It is therefore unnecessary to consider the principles governing the withdrawal of admissions in any detail.

17    Leave is required to file the proposed amended defence because the pleadings have closed: rr 16.51 and 16.53. An order granting leave may be made subject to conditions: r 1.33. The discretion to grant leave is broad, but must be exercised in a manner consistent with the overarching purpose stated in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act), namely to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

18    The relevant considerations include the nature and importance of the proposed amendment to the party seeking it, the stage reached in the proceeding, the explanation for the amendment, any resulting delay or prejudice, and whether prejudice can adequately be addressed by costs. The Court must also consider the efficient use of its resources and the interests of other litigants. Determining the real issues between the parties is important, but does not displace those considerations: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [30] (French CJ), [95], [97] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); University of Sydney v ResMed Ltd (No 5) [2012] FCA 232 at [14] (Stone J); Selvaratnam v St George – A Division of Westpac Banking Corporation (No 2) [2021] FCA 486 at [28] (Stewart J).

19    The party seeking leave bears the onus of satisfying the Court that the discretion should be exercised in its favour: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [17] (Marshall, Rares and Flick JJ). In the circumstances of the present application, however, Charter Financial does not oppose leave to amend generally. The dispute is confined to whether particular responses in the proposed amended defence are permissible and adequate, and whether Charter Financial’s objection to the unchanged limitation defence in paragraph 44 arises for determination on the application.

CONSIDERATION

Withdrawal of the deemed admissions

20    As mentioned, Charter Financial consents to withdrawal of the deemed admissions. I am satisfied that it is appropriate to make orders giving effect to the parties’ consent position.

Issue 1: Proposed responses to the Withdrawal Form allegations

21    Charter Financial’s amended statement of cross-claim alleges that specified areas of the Withdrawal Forms “appear to have alterations” and that the apparent alterations were not initialled by the signatory.

22    Australian Unity proposes to plead that it does not know and therefore cannot admit those allegations. Charter Financial submits that Australian Unity is able to inspect each Withdrawal Form and should be required to admit or deny whether the specified areas appear to have been altered and whether initials appear beside them.

23    Australian Unity submits that the allegation of alteration necessarily requires comparison with an antecedent state of the document, which Charter Financial has not identified. It also relies on rr 16.07(3) and (4), under which a statement that a party does not know and therefore cannot admit a fact is taken to be a denial.

24    The fact that a statement made under r 16.07(3) is taken to be a denial does not, of itself, determine whether the proposed response is an appropriate one. The question is whether the party genuinely does not know and therefore cannot admit the particular fact, or whether the proposed response fails to engage adequately with an allegation that the party is able to admit or deny. That question must be considered by reference to the terms and character of the allegation actually pleaded. It is necessary to examine the allegations and proposed responses in their broader pleaded context.

25    Charter Financial pleads that copies of the Withdrawal Forms, as reproduced in Exhibit SHK-1, appear on their face to contain alterations in identified fields. In relation to the first Withdrawal Form, those fields are the BSB and the account number on page 2 and the first appearing amount and the total amount on page 3: SHK-1 at pp 5-6. In relation to each of the second to fifth and sixth to seventeenth Withdrawal Forms, the identified fields are the BSB and the account number on page 2, the first appearing amount and the total amount on page 3, and the date on page 5. The “5.1” Withdrawal Form is treated differently. The pleaded apparent alterations are confined to the first appearing amount and the total amount on page 3 and the date on page 5: SHK-1 at pp 109, 111. In each case, Charter Financial also pleads that the signatory did not initial the Withdrawal Form next to any “apparent alteration”. Charter Financial submits that these allegations concern the appearance of the copies and do not allege when, how, or by whom any alteration was made.

26    Australian Unity’s proposed responses may be summarised as follows. In the table, a reference to the “five identified fields” is to the BSB, the account number, the first appearing amount, the total amount, and the date.

27    Australian Unity has taken an express position on its receipt of each Withdrawal Form and on certain features appearing on the face of the forms. It has also taken a position on whether each Withdrawal Form appeared, upon receipt, to bear Ms Toscan’s signature and, where alleged, whether successive forms appeared identical. It has not responded separately to the alleged appearance of alterations in any identified field or to the alleged absence of initials next to the apparent alterations. Those matters fall within its residual response that it does not know and therefore cannot admit the balance of the relevant composite subparagraph.

28    Charter Financial does not allege, in the subparagraphs presently in issue, that the Withdrawal Forms were in fact altered. It alleges that specified areas “appear to have alterations”. Those allegations form part of Charter Financial’s case that Australian Unity and Charter Financial are joint tortfeasors liable in respect of the same loss.

29    Charter Financial alleges that the Withdrawal Forms bore specified features, including apparent alterations and the absence of initials; that, in light of those features, a reasonable person in Australian Unity’s position would have taken steps to confirm that Ms Toscan had authorised the relevant withdrawal and would not have made payment until it received that confirmation; and that Australian Unity’s failure to take those steps constituted a breach of duty that caused the loss in respect of which Charter Financial claims contribution. The allegations concerning the appearance of the Withdrawal Forms therefore provide part of the factual foundation for the alleged obligation to take steps to confirm Ms Toscan’s authorisation.

30    The difficulty arises from the formulation of that factual foundation. The expression “appears to have alterations” does not separate the features observable on the face of each document from the characterisation Charter Financial places upon them. It combines an observation about the appearance of the document with a characterisation that may imply that the document was changed from an earlier state. To that extent, Australian Unity’s submission that “alteration” invites comparison with an unidentified antecedent document has force.

31    That does not, however, resolve the adequacy of Australian Unity’s proposed response. The debate about whether the identified features are properly characterised as “alterations” tends to obscure the issue material to Charter Financial’s claim for contribution. The issue is whether the Withdrawal Forms bore features which, considered separately or cumulatively, put or ought to have put a reasonable person in Australian Unity’s position, exercising reasonable care, on notice that a Withdrawal Form might not be genuine or might not record a withdrawal authorised by Ms Toscan, so as to require further inquiry before payment was made.

32    Charter Financial could have pleaded that case more precisely by identifying each observable feature as a separate material fact and then pleading the significance said to arise from those features. That would have enabled Australian Unity to admit, deny or make a conforming non-admission in respect of each fact. Instead, Charter Financial pleaded a composite allegation which combines observation and characterisation. Australian Unity should not be required, as a condition of leave, to admit or deny that composite allegation in terms that might be understood as extending to whether an alteration occurred in fact.

33    There remains a separate question whether Australian Unity can respond directly to particular matters observable on the face of the Withdrawal Forms, including whether initials appear beside the identified alleged alterations. Australian Unity’s submission concerning an unidentified antecedent document does not explain why it cannot admit or deny the presence or absence of an initial at a specified location. Nor does it explain why all observable features falling within the balance of each composite subparagraph must receive a single residual non-admission.

34    It is not appropriate on Australian Unity’s application to require Charter Financial to reformulate its cross-claim without first giving the parties an opportunity to address that course. Nor is it necessary to determine, for the purpose of the present application, whether each observable feature should have been pleaded as a separate material fact. Charter Financial may, if so advised, seek to amend its pleading to identify those features more precisely or use an appropriate procedural mechanism to narrow the objective factual matters in dispute.

35    I am therefore not satisfied that leave to file the proposed amended defence should be conditioned on Australian Unity admitting or denying that the specified areas of the Withdrawal Forms “appear to have alterations” and the related absence of initials allegations. That conclusion does not determine that Australian Unity would be entitled to make the same global non-admissions if Charter Financial pleaded separately the particular features observable on the face of each Withdrawal Form or the absence of initials at identified locations.

36    Rule 16.07(3) expressly permits a party to state that it does not know and therefore cannot admit a particular fact. A fact answered in that manner is taken to be denied: r 16.07(4). In the context of the composite allegations presently pleaded, Australian Unity’s proposed response is sufficient to join issue with Charter Financial. Leave will not be conditioned on Australian Unity replacing that response with an admission or denial.

Issue 2: Limitation defence in paragraph 44

37    Australian Unity’s proposed amended defence retains a limitation defence pleaded in paragraph 44 of its existing defence. Paragraph 44 pleads:

Further or in the alternative, the cross-claimant says that:

a.    Ms Toscan’s cause(s) of action (if any) as against the cross-respondent accrued more than six years before she commenced her action and is, therefore, not maintainable against the cross-respondent; and

b.    consequently, the cross-claimant is not entitled to recover any contribution from the cross-respondent pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), in equity or at all.

38    Although paragraph 44 commences with the words “the cross-claimant says”, the paragraph appears in Australian Unity’s defence and advances a defence on behalf of Australian Unity. I proceed on the basis that the reference to the cross-claimant is an apparent drafting error.

39    The reference in paragraph 44(a) to Ms Toscan’s causes of action is to the negligence claim which Charter Financial alleges Ms Toscan could maintain against Australian Unity. That alleged liability provides the foundation for Charter Financial’s case that Australian Unity and Charter Financial are joint tortfeasors liable in respect of the same damage. In paragraph 33 of the amended cross-claim, Charter Financial claims contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act and, alternatively, in equity. In its reply, Charter Financial referred expressly to those two bases of contribution in answer to paragraph 44.

40    Paragraph 44 does not identify the limitation provision upon which Australian Unity relies. Nor does it plead the dates on which the relevant causes of action accrued or the limitation periods are said to have expired. The reasoning appears to be that, because Ms Toscan’s causes of action against Australian Unity accrued more than six years before she commenced the proceeding, those claims are not maintainable and Charter Financial is consequently precluded from recovering statutory or equitable contribution. Charter Financial pleads in its reply that s 26 of the Limitation Act 1969 (NSW) applies to its statutory contribution claim and applies by analogy to its equitable contribution claim, including by reason of s 23 of the Limitation Act.

41    Paragraph 44 appeared in the existing defence and is not introduced, altered or enlarged by the proposed amended defence. Charter Financial responded substantively to it in paragraph 2 of its reply filed on 12 May 2026. By paragraph 2, Charter Financial pleaded that s 26 of the Limitation Act governs its statutory contribution claim and applies by analogy to its equitable contribution claim; that Australian Unity had not alleged, and could not allege, that the relevant limitation period had expired; and that any time bar affecting a direct claim by Ms Toscan against Australian Unity would not make Charter Financial’s contribution claims unmaintainable. Before the present application, Charter Financial did not seek particulars of paragraph 44 or apply to strike it out.

42    The issue has arisen because Charter Financial submits that the Court should not grant Australian Unity leave to file a proposed amended defence which retains a limitation defence that is inadequately pleaded and not reasonably arguable. Consistently with the position pleaded in its reply, Charter Financial submits that the applicable limitation regime is found in s 26 of the Limitation Act and that paragraph 44 neither pleads nor discloses a defence under that provision. It contends that dealing with the issue now would narrow the issues and avoid the cost of maintaining a defence which cannot succeed.

43    Section 26 of the Limitation Act establishes a specific limitation regime for an action for contribution under s 5(1) of the Law Reform (Miscellaneous Provisions) Act. Such an action is not maintainable if brought after the first to expire of two periods: first, two years from the date on which the cause of action for contribution first accrues; and second, four years from the expiry of “the limitation period for the principal cause of action”, which s 26(3) defines as the limitation period applicable to the cause of action for the liability in respect of which contribution is sought. Where the contribution claimant’s liability is fixed by a judgment or arbitral award, the contribution cause of action first accrues when the judgment is given or the award is made. In a case not involving a judgment or award, it accrues when an agreement fixes the amount of the contribution claimant’s liability for the relevant damage: s 26(2).

44    In its reply, Charter Financial pleaded that Australian Unity had not alleged, and could not allege, that the limitation period applicable to the contribution claims had expired. In its submissions on the present application, Charter Financial develops that pleaded position as follows. Charter Financial submits that no judgment or arbitral award has fixed its liability to Ms Toscan and that, if an agreement has fixed that liability, it did not occur before 12 March 2026. It further submits that, even if the six-year period applicable to Ms Toscan’s principal cause of action began with the first withdrawal on or about 7 December 2017, the alternative four-year period in s 26(1)(b) would not expire until 7 December 2027. On Charter Financial’s case, neither period in s 26(1) had expired when its cross-claim was brought.

45    Charter Financial’s criticism of paragraph 44 has substantial force. As presently framed, the paragraph does not engage with the limitation regime in s 26. It does not identify either period prescribed by s 26(1), allege when Charter Financial’s cause of action for contribution accrued, or plead facts from which it could be concluded that either period has expired. Further, paragraph 44 does not explain why the alleged expiry of the limitation period applicable to Ms Toscan’s causes of action has the pleaded consequence that Charter Financial’s distinct contribution claim is not maintainable. That is the point Charter Financial pleaded in paragraph 2(d) of its reply: even if a direct claim by Ms Toscan against Australian Unity would not be maintainable, that circumstance would not of itself make Charter Financial’s contribution claims unmaintainable. The expiry of the limitation period for the principal cause of action is relevant to the calculation required by s 26(1)(b) of the Limitation Act, but it does not, without more, establish that the contribution claim is itself time-barred, including by operation of 26(1)(a).

46    The pleading is also undifferentiated in its treatment of Charter Financial’s statutory and equitable claims. By contrast, Charter Financial pleads in its reply that s 26 of the Limitation Act applies by analogy to the equitable contribution claim, including by reason of s 23. Paragraph 44 asserts that Charter Financial cannot recover contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act, in equity “or at all”, but does not identify the limitation principle said to apply to the equitable claim or plead the facts necessary to establish the expiry of any period applied by analogy. Paragraph 44 therefore does not disclose with sufficient clarity the legal and factual basis upon which either contribution claim is said to be time-barred.

47    That conclusion does not determine whether Australian Unity could plead a limitation defence in another form. The expiry of the limitation period applicable to the principal cause of action is relevant because it supplies the starting point for the four-year period in s 26(1)(b) of the Limitation Act. Nor has Australian Unity advanced its substantive argument concerning the relationship between the maintainability of Ms Toscan’s claim against it and Charter Financial’s entitlement to contribution. Australian Unity has been on notice since the filing of the reply on 12 May 2026 that Charter Financial contends that s 26 governs the statutory contribution claim, applies by analogy to the equitable claim, and is not engaged merely because a direct claim by Ms Toscan may be time-barred. Australian Unity has nevertheless confined its submissions on the present application to the anterior contention that the adequacy of paragraph 44 does not arise for determination. It says that, if Charter Financial applies to strike out the defence, it will then advance its substantive case in support of it.

48    Charter Financial relies on Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm) [2015] FCA 1098 at [143] (Gleeson J) for the proposition that the Court should not ordinarily grant leave to file an amended pleading that would be liable to be struck out. Australian Unity submits that the principle is not engaged because paragraph 44 already forms part of the existing defence and is not introduced or altered by the proposed amendments. Charter Financial submits that Australian Unity should not receive the indulgence of leave to amend while paragraph 44 remains in the proposed pleading, notwithstanding that the paragraph also appeared in the existing defence.

49    Paragraph 44 is not itself an amendment and would remain in the existing defence if leave were refused. Charter Financial has not applied to strike out that pleading, and the parties have not fully addressed whether Australian Unity could maintain a limitation defence in another form. It would therefore be inappropriate to determine finally on this application that no limitation defence is available. Those matters do not, however, answer the narrower question whether the Court should approve a replacement defence which reproduces paragraph 44 unchanged. It is therefore necessary to consider whether leave should be conditioned so that the replacement pleading does not reproduce paragraph 44 in a form that fails to disclose the legal and factual basis of the limitation defence.

50    The Court is not required to approve the filing of the pleading without regard to a serious and identified deficiency in a paragraph which would form part of the operative defence. Requiring the replacement pleading to omit paragraph 44, while preserving Australian Unity’s ability to seek leave to advance a properly formulated limitation defence, is a proportionate means of defining the issues and avoiding further interlocutory cost. It does not determine the substantive availability of the defence and does not deprive Australian Unity of an opportunity to advance it. That course is consistent with the overarching purpose in s 37M of the FCA Act. Charter Financial’s reply, filed on 12 May 2026, put Australian Unity on notice of the particular difficulty. Charter Financial pleaded that s 26 of the Limitation Act governs the statutory contribution claim and applies by analogy to the equitable claim, that Australian Unity had not alleged the expiry of the relevant limitation period, and that any time bar affecting a direct claim by Ms Toscan would not of itself render Charter Financial’s contribution claims unmaintainable.

51    Australian Unity has not sought in the present application to reformulate paragraph 44 in response to those matters. I do not determine that Australian Unity is incapable of pleading an available limitation defence. Australian Unity has not advanced the substantive legal and factual basis upon which it contends that such a defence is available, and that question has not been fully argued. The present difficulty is that paragraph 44 does not identify the limitation provision or equitable principle relied upon, the material facts said to engage it, or the basis upon which the alleged bar to Ms Toscan’s direct claim defeats Charter Financial’s distinct statutory and equitable contribution claims.

52    In those circumstances, paragraph 44 should not be reproduced in the replacement defence in its present form. Leave to file the amended defence will therefore be conditioned on paragraph 44 being omitted. Australian Unity may, within the period fixed by the orders, seek leave to file a further amended defence which pleads any limitation defence upon which it relies.

53    That course does not strike out paragraph 44 of the existing defence without an application, nor does it determine that no limitation defence can be maintained. It ensures that the replacement pleading for which Australian Unity seeks leave does not reproduce a defence which, in its present form, fails to identify the case Charter Financial is required to meet.

54    I make no determination as to the costs consequences, if any, of Australian Unity not having sought in this application to reformulate paragraph 44 in response to the matters identified in Charter Financial’s reply. If Australian Unity later seeks leave to plead a reformulated limitation defence, or a further dispute arises concerning that defence, any question of costs, including costs said to have been thrown away, will be determined in light of the circumstances before the Court on that future occasion.

Issue 3: Costs

55    Australian Unity accepts that it should pay Charter Financial’s costs, if any, occasioned by the amendments. That should include any costs thrown away by reason of the amended interlocutory application lodged for filing on 17 August 2026.

56    Australian Unity sought Charter Financial’s consent and offered to pay the costs occasioned by the proposed amendments. It followed up twice on that request, on the latter occasion stating that an application would be filed unless Charter Financial confirmed that one was unnecessary. Charter Financial did not provide, or otherwise communicate, its consent before Australian Unity filed the application. In those circumstances, Australian Unity acted reasonably in seeking the Court’s leave rather than proceeding on the basis that consent would be forthcoming.

57    Australian Unity has not obtained leave to file its proposed amended defence in the form for which it sought approval. Charter Financial did not succeed on Issue 1 (the Withdrawal Forms) but succeeded in obtaining a condition requiring paragraph 44 to be omitted from the replacement defence. Each party has therefore had a measure of success on the contested issues. Australian Unity should pay Charter Financial’s costs occasioned by the amendments, consistently with the position it has accepted, but there should otherwise be no order as to the costs of the application.

58    The costs of any later application concerning a reformulated limitation defence are not presently before the Court. Any such costs, including costs said to have been thrown away, will be determined if and when that issue arises.

CONCLUSION

59    I will grant Australian Unity leave to withdraw the deemed admissions identified in the amended interlocutory application lodged for filing on 17 August 2026. Australian Unity will also have leave to file and serve an amended defence substantially in the form proposed, subject to paragraph 44 being omitted.

60    Australian Unity may, within the period fixed by the orders, seek leave to file a further amended defence pleading any limitation defence upon which it relies. Leave will not be conditioned on Australian Unity replacing its proposed non-admissions concerning the Withdrawal Forms with admissions or denials.

61    I will make orders accordingly.

Associate:

Dated:    7 September 2026

SCHEDULE OF PARTIES

CROSS CLAIM