Abignano Nominees Pty Ltd v Altius Pty Ltd
[2018] NSWSC 732
•23 May 2018
Supreme Court
New South Wales
Medium Neutral Citation: Abignano Nominees Pty Ltd v Altius Pty Ltd [2018] NSWSC 732 Hearing dates: 8 May 2018 Decision date: 23 May 2018 Jurisdiction: Common Law Before: Button J Decision: (1) Pursuant to rule 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW), the following paragraphs of the defendant’s Amended Defence filed 15 March 2018 are struck out, with leave to the defendant to replead:
(a) 4, 6, 19, 21, 23, 24(b), 27, 28, 29, 30, 32 and 38.
(2) The defendant must file and serve any Further Amended Defence in accordance with Order 1 by 5pm on 4 July 2018.
(3) Any Further Amended Defence filed in accordance with Order 1 must comply with UCPR 19.5, and in particular must clearly indicate the nature of any amendments as they relate to the Defence filed on 21 December 2017.
(4) The matter is listed at 9 am before the Common Law Registrar for directions on 11 July 2018.
(5) The defendant, Altius Pty Ltd, must pay the costs of the plaintiffs of the proceedings before me.Catchwords: CIVIL PROCEDURE – notice of motion – whether Amended Defence complies with rules of formatting to permit differentiation of it from the preceding pleading – whether the Amended Defence provides sufficient detail about the particular parts of documents relied upon and their asserted effect – paragraphs struck out with leave to file a further amended defence Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 14.28, 19.5 Category: Procedural and other rulings Parties: Abignano Nominees Pty Ltd (First Plaintiff)
Avich Holdings Pty Ltd (Second Plaintiff)
Gennaro Abignano (Third Plaintiff)
B&J Abignano Pty Ltd (Fourth Plaintiff)
Altius Pty Ltd (Defendant)Representation: Counsel:
Solicitors:
D Neggo (Plaintiff)
R Weaver (Defendant)
M&K Lawyers Group Pty Ltd (Plaintiff)
Watson Mangioni Lawyers Pty Ltd (Defendant)
File Number(s): 2017/320112 Publication restriction: Nil
Judgment
Introduction
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A notice of motion filed on 11 April 2018 by the four plaintiffs (to which and whom I shall simply refer as the plaintiffs, unless discrimination between them is required) implicitly asserts that the Amended Defence of the defendant, filed on 15 March 2018, is not in good order, and explicitly moves the Court for orders directed towards bringing it into that state.
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The defendant, whilst accepting that the document is not perfect in every way, nevertheless resists the making of the orders on a number of bases.
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The matter came before me in the Duty List on 8 May 2018, and I am grateful for the focused and expeditious way in which the motion was argued by each counsel.
Background
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A very broadly stated background of the matter is as follows.
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I understand that there is no real dispute that at least some of the plaintiffs and the defendant, and other associated natural persons, entered into a joint venture to develop a piece of real estate. There was a complex interaction between natural persons and corporations. Regrettably, the project has soured, and litigation has resulted.
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The amended statement of claim of the plaintiffs filed on 24 November 2017 is, in my respectful opinion, detailed and clear: it sets out the status of the plaintiffs; describes a “Joint Venture Agreement”; refers to particular clauses thereof; details payments flowing between the parties, and to a financial institution; pleads a subsequent variation; pleads an alternative to that subsequent variation, in the form of an express oral agreement; sets out alleged loans from the plaintiffs to the defendant; sets out a further alternative case based on further conversations; and concludes by asserting the amounts said to be owing by the defendant to each of the plaintiffs.
Submissions of the plaintiff
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The complaints about the Amended Defence really boil down to two things.
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The first is a matter of formatting, in that it is said that the rules have not been followed to permit the reader to see how the Amended Defence differs from its predecessor: see rule 19.5 of the Uniform Civil Procedure Rules 2005 (NSW). Although that is a matter of form only, the point is made that those rules are directed towards ready understanding, both by parties and judicial officers, of the precise ways the latest iteration of a pleading is different from an earlier one.
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The second complaint is more substantial. It is said that, to the extent that the defendant has seemingly denied, or at least called into question, parts of what the Amended Statement of Claim asserts, and in doing so referred to documents such as the “Joint Venture Agreement”, there needs to be more specificity as to the particular parts of such a document, and their asserted particular effect, for there to be proper comprehension of the bases upon which the defendant resists the claims.
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An example of that complaint is paragraph four of the Amended Defence, which is as follows:
“As to paragraph 9 of the amended Statement of Claim the Defendant relies on the terms of the Joint Venture Agreement for its full terms and effect.”
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Other examples relied upon are paragraph 21 in paragraph 23.
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Separately, to the extent that the Amended Defence pleads such matters as no meetings of the directors of the defendant having occurred (in accordance with the Constitution of the defendant) authorising various transactions, the plaintiffs assert that it is incumbent upon the defendant to set out explicitly the legal consequences of those assertions. Examples in the Amended Defence of that alleged failing are paragraphs 27 and 28.
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Finally, it was said that portions of the Amended Defence assert that certain events, such as the entering into an agreement, occurred, without providing details as to how that “legal” event occurred “factually”. Examples are said to be paragraphs 29 and 38 of the Amended Defence.
Submissions of the defendant
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The position of the defendant in resistance to the above submissions may be summarised as follows.
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First, it may be true that the Amended Defence does not strictly comply with the rules about how the latest iteration of a pleading is to demonstrate the ways in which it differs from its predecessor. It was also accepted that there may be one or more typographical errors in the document. But, it was said, that is of no great moment: it is patently clear that the plaintiffs, through their counsel, understand the Amended Defence, because the Notice of Motion is based upon detailed criticism of it.
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Secondly, it was accepted that the precise clauses of various documents upon which the Amended Defence relies have not been explicitly identified. But the point was made that all the documents in question are available to the plaintiffs, and indeed some of them were prepared with input from their lawyers. It is no difficult task for those documents to be analysed, and the portions relied upon readily to be identified.
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Thirdly, it was said that, on proper analysis, the facts alleging various legally effectual events are sufficiently pleaded in the Amended Defence; for example, it was said that paragraph 39 can only be read as providing the details underpinning the assertion in paragraph 38.
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Fourthly, I was taken to correspondence from the solicitors for the defendant said to show that sufficient particulars, above and beyond the Amended Defence, have already been provided to the solicitors for the plaintiffs.
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Fifthly and finally, it was said that the purpose of pleading generally, and a Defence in particular, is so that one’s opponent and the Court can understand the basis upon which a claim is being made or resisted. It is not an occasion for a defendant to be forced immediately to throw all of its cards on the forensic table.
Determination
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Turning to my determination, it may be accepted that compliance with the rules is a matter of formatting. But it is also, in my opinion, a matter of substance: unless one is able to “track changes” in a readily comprehensible manner, one is unable to see whether the pleadings have developed appropriately or inappropriately, without a great deal of wasted time and effort.
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On that basis alone, I believe that the Amended Defence must be reworked, so that all persons at the Bar table – and all judicial officers who deal with the matter – can readily see how one document led to another.
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And whilst one can accept that typographical errors are often nothing more than a distraction, I think that the same opportunity can be taken to find any in the Amended Defence, and to correct them.
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Secondly and separately, it is one thing to say that all of the relevant documents are in the possession of the legal team of the plaintiffs. But, at this stage at least, they are not in the possession of the Court. In my opinion, unless there is much more specificity with regard to the bases upon which the defendant resists the claim, the Amended Defence provides an insufficient understanding to a judicial officer about what it is the defendant is actually pleading in resisting the claim.
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Thirdly, the fact is that paragraphs 17 to 40 of the Amended Defence plead an affirmative case. Bearing that in mind, in my opinion, there needs to be far greater specificity with regard to the factual and legal bases of it.
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Fourthly and finally, it is true that one can find further details about what the Amended Defence is “getting at” in the correspondence that has passed between the two sets of solicitors. But there is no reason why a judicial officer – whether dealing with the matter on an interlocutory basis, or ultimately at trial – should have to refer to correspondence between solicitors in order to understand the basal pleading of one of the parties.
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For all of those reasons, I consider that the primary submission of the plaintiffs is well founded, and that the primary orders in the Notice of Motion should be made by me.
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With regard to proposed order 2 in the Notice of Motion, and not having heard from the parties, to permit the Further Amended Defence to be as far beyond criticism as reasonably practical, I propose to allow the substantial period of six weeks from today for its filing.
Costs
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Counsel were in agreement that there is no reason why the costs of the motion should not follow the event.
Orders
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For the foregoing reasons, I make the following orders:
Pursuant to rule 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW), the following paragraphs of the defendant’s Amended Defence filed 15 March 2018 are struck out, with leave to the defendant to replead:
4, 6, 19, 21, 23, 24(b), 27, 28, 29, 30, 32 and 38.
The defendant must file and serve any Further Amended Defence in accordance with Order 1 by 5pm on 4 July 2018.
Any Further Amended Defence filed in accordance with Order 1 must comply with UCPR 19.5, and in particular must clearly indicate the nature of any amendments as they relate to the Defence filed on 21 December 2017.
The matter is listed at 9 am before the Common Law Registrar for directions on 11 July 2018.
The defendant, Altius Pty Ltd, must pay the costs of the plaintiffs of the proceedings before me.
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Decision last updated: 23 May 2018
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