Abbhall Pty Ltd v Canberra Land Developments Pty Ltd

ABBHALL PTY LTD v CANBERRA LAND DEVELOPMENTS PTY LTD
[2009] ACTSC 120  (18 September 2009)

PRACTICE AND PROCEDURE – amendment to statement of claim – application allowed in part – leave to add new cause of action refused

Court Procedures Rules 2006, r 21, r 501, r 502, r 6700
Agents Act 1968
Agents Act 2003
Agents Regulations 2003

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27

No.  SC 217 of 2007

Judge:             Master Harper
Supreme Court of the ACT

Date:              18 September 2009

IN THE SUPREME COURT OF THE     )
  )          No.  SC 217 of 2007
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:ABBHALL PTY LTD ACN 089 794 490

Plaintiff

AND:CANBERRA LAND DEVELOPMENTS PTY LTD

ACN 103 875 823

Defendant

ORDER

Judge:  Master Harper
Date:  18 September 2009
Place:  Canberra

THE COURT ORDERS THAT:

1. The plaintiff have leave to amend the statement of claim further, consistently with the draft forwarded to the defendant’s solicitors on 3 April 2009.

1. The plaintiff pay the defendant’s costs of and occasioned by the amendment.

1. The hearing of this action was listed before me to commence on Monday 14 September 2009 with an estimate of three days.  On Wednesday 9 September, the solicitors for the plaintiff filed an application returnable the following day, seeking orders that the hearing date be vacated and that the plaintiff have leave to file an amended statement of claim.  The application sought a further order that the evidence of a named witness, Malcolm Weston, be taken on Tuesday 15 September at his home in a northern suburb of Melbourne.

1. The hearing of the application proceeded on the morning of Thursday 10 September.  Counsel for the defendant did not oppose the application being heard at short notice, and I made appropriate formal orders in that regard.

1. The evidence in support of the application was contained in an affidavit affirmed on 9 September by Ms Allyson Hine, a solicitor employed by Bradley Allen.  She deposed that until 4 May 2009 she had been employed by Wood Fussell, the solicitors who had acted for the plaintiff since the proceedings were commenced in March 2007, where she had had the conduct of the matter.  She said that the previous day she had been asked to attend a conference with senior counsel for the plaintiff and a director of the plaintiff company, Mr Abbey.  She was informed that Mr Abbey had terminated Wood Fussell’s instructions “because they’ve done nothing since you left”.  She had agreed to take over the conduct of the matter within her new firm.  She had been able, by the time she affirmed her affidavit, to look at portions of Wood Fussell’s file but had not obtained all of its extensive contents.  She deposed that it was apparent from the file that the matter had not been adequately prepared for trial, and that little had been done since she had left the previous firm four months earlier.  There was no explanation readily apparent from the file for…