Legal Research
Cases
ABL Nominees Pty Ltd v Mackenzie (No 2)

ABL Nominees Pty Ltd v Mackenzie (No 2)

Link copied

Case Copied 22 October 2014 37 min read

Contents

On this page

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S CI 2009 4756

ABL NOMINEES PTY LTD (ACN 106 756 521) In its corporate capacity and as Trustee for the Lighthouse Warehouse Trust No. 8 (Environinvest Finance) AND OTHERS (according to the schedule attached)	Plaintiffs
v
CAROLINE MACKENZIE	Defendant

---

JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 & 13 October 2014
DATE OF JUDGMENT:	22 October 2014
CASE MAY BE CITED AS:	ABL Nominees Pty Ltd v MacKenzie (No. 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 529

---

PRACTICE AND PROCEDURE – Application to amend pleadings – New defences sought to be raised – Principles relevant to an application to amend – Test for determining whether amendment futile – Late application to amend to include defence of unconscionable conduct by lender – Garcia v National Australia Bank Ltd (1998) 194 CLR 395 – Whether pleading discloses a viable defence – Application allowed.

PRACTICE AND PROCEDURE – Whether waiver of client legal privilege by defendant - Application to subpoena files of solicitor formerly acting for defendant to allow testing of the accuracy and credit of defendant’s evidence - Application to test evidence of applicant to amend defence by cross-examination – Whether in the interests of the just, efficient, timely and cost effective resolution of the proceeding – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Delany QC with Dr O. Bigos	Allens Linklaters
For the Defendant	Mr RM Garrett QC with T.G. Moloney	Foundation Legal

HIS HONOUR:

Introduction

By summons filed on 7 October 2014 the defendant (Caroline or the defendant) applies for leave to file and serve a Further Amended Defence. In the related proceeding between the plaintiff and Euan Pescott (Euan) (proceeding S CI 2009 4804) the same application is made by a summons filed the same day. I will deal with both applications together in these reasons.

The plaintiffs’ claims arise under loan agreements entered into in June 1999 (in the case of Euan) and June 2000 (in the case of Caroline) between the first plaintiff’s ultimate assignor, which in Caroline’s case is Blackburne Pty Ltd (Blackburne), and in Euan’s case is BEP Finance Pty Ltd (BEP). The loan agreements were assigned to Environinvest Limited, the fourth plaintiff (EIL) and then to Primary Yield Finance Pty Ltd, the third plaintiff (PYF) and from PYF to the first plaintiff (ABL).

The substantial defence in the existing Third Further Amended Defence (after denials of the assignments alleged) is that under a put and call option between the defendant and EIL—the defendant was granted a put option, and EIL a call option—under which EIL could be required to buy certain property, or could call on the defendant to sell that property (presumably the woodlots acquired with the loan moneys) and in consideration pay out the loan. The defendants in each proceeding allege that on 20 September 2007 they, via…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read ABL Nominees Pty Ltd v Mackenzie (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] VSC 529
Decision Date: 22 October 2014

CaseChat Overview and Summary

The applicants, ABL Nominees Pty Ltd, sought to amend their pleadings to introduce new defences in an ongoing proceeding against the respondent, Mackenzie. The application arose out of a dispute concerning an alleged unconscionable conduct by the applicants, which was raised for the first time in an amended defence. The matter was before the Supreme Court of New South Wales. The primary legal issue before the court was whether the applicants should be allowed to introduce new defences late in the proceedings and, if so, whether these defences were viable. The court also had to consider whether the applicants had waived their client legal privilege, and whether it was in the interests of justice to subpoena files of a former solicitor to test the credit of the applicants' evidence.

The court examined the principles relevant to an application to amend pleadings, considering factors such as whether the amendment would be futile and the effect on the respondent. The court found that the new defences, although raised late, were not futile and were viable, as they were based on the principle of unconscionable conduct as articulated in Garcia v National Australia Bank Ltd. The court emphasised the importance of the just, efficient, timely and cost-effective resolution of proceedings. The court refused the application to subpoena files of the former solicitor, finding that it was not in the interests of justice to do so. The applicants' waiver of client legal privilege was not found to have occurred.

The Supreme Court allowed the application to amend the pleadings to include the new defences. However, the application to subpoena the files of the former solicitor was refused. The court's decision recognised the importance of balancing the need for procedural fairness and the overarching objective of resolving disputes justly and efficiently.

Orders