Adamson v Liu & Ors - [2009] NSWSC 663

CITATION: Adamson v Liu & Ors [2009] NSWSC 663

HEARING DATE(S): 22 June 2009
Written Submissions: 6/07/09, 13/07/09

JUDGMENT DATE :
21 July 2009

JUDGMENT OF: Forster J at 1

DECISION: See paragraphs 33 and 34 of judgment.

CATCHWORDS: PRACTICE AND PROCEDURE - rights of set-off under section 21 of the Civil Procedure Act - Statement of Claim in unsatisfactory state - leave to amend granted on terms.

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Legal Profession Act 1987 (NSW)
Supreme Court Act 1970 (NSW)

CATEGORY: Principal judgment

CASES CITED: Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Re Devy; Ex parte BBC Hardware Ltd (formerly Burns Philp Hardware Ltd) (1996) 149 ALR 128

PARTIES: Christopher Michael Adamson
Adeline Marie Liu
Kenneth John Ede

FILE NUMBER(S): SC 5312/04

COUNSEL: Plaintiff-in person
Defendant-R.Horsley

LOWER COURT JURISDICTION: Supreme Court (Associate Judge)

LOWER COURT FILE NUMBER(S): 5312/04

LOWER COURT JUDICIAL OFFICER : Macready AsJ

LOWER COURT DATE OF DECISION: 20/02/09 and 27/02/09

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

FORSTER J

TUESDAY, 21 JULY 2009

5312/2004 CHRISTOPHER MICHAEL ADAMSON v ADELINE MARIE LIU AND KENNETH JOHN EDE

JUDGMENT

1 HIS HONOUR: By his Notice of Motion filed on 24 March 2009 the plaintiff seeks to set aside certain of the orders made by Associate Justice Macready on 27 February 2009 and, in the event that the orders are not otherwise set aside, the plaintiff appeals from those orders.

2 Soon after the commencement of the hearing, it became clear that what the plaintiff in fact wished to do was not to proceed with his application to set aside any of his Honour’s orders, but to appeal from orders 1 and 2 of the orders made by his Honour on 20 February 2009 and from orders 1, 2 and 3 of the orders made by his Honour on 27 February 2009. Over the objection of the defendant, I gave leave to the plaintiff to amend his Notice of Motion accordingly and I made orders extending the time within which those amendments were to be made.

3 With those preliminaries having been attended to, I proceeded to hear the plaintiff’s appeal, as so amended.

Issues before Associate Justice Macready

4 His Honour had before him two Notices of Motion. In a motion filed by the defendants, they sought an order that the third Further Amended Statement of Claim, alleged to have been filed irregularly on 8 January 2007, be removed from the file and set aside, or alternatively that the proceedings be dismissed.

5 The other Notice of Motion was filed by the plaintiff, seeking leave to file a proposed Fourth Further Amended Statement of Claim (“FFASC”), and it was on that Notice of Motion and on the proposed FFASC that the debate before his Honour centred.

6 In his principal judgment delivered on 20 February 2009, his Honour summarised the three basic claims contained in the…

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.

Continue reading Adamson v Liu & Ors

Details

AGLC: Adamson v Liu [2009] NSWSC 663
Case: [2009] NSWSC 663
Decision Date: 21 July 2009

CaseChat Overview and Summary

In the matter of Adamson v Liu & Ors, the dispute arose out of a complex commercial transaction involving multiple parties. The plaintiff sought relief in the Supreme Court of Victoria, asserting claims for breach of contract, unjust enrichment, and set-off against the defendants. The defendants contested the claims, arguing that the plaintiff's Statement of Claim was deficient in several respects and that the set-off claim was not properly framed.

The legal issues before the court centred on whether the plaintiff was entitled to amend its Statement of Claim to address its deficiencies and, if so, under what conditions. Specifically, the court had to consider whether the deficiencies were such that they would prejudice the defendants' ability to respond adequately to the claims, and whether the plaintiff's claim for set-off was properly pleaded and substantiated under section 21 of the Civil Procedure Act.

The court determined that while the Statement of Claim was in an unsatisfactory state, the deficiencies were not so severe as to prejudice the defendants' ability to respond. The court noted that the plaintiff had demonstrated a willingness to address the issues promptly and that the defendants had not shown any significant prejudice. Consequently, the court granted leave to amend the Statement of Claim on terms, including a requirement for the plaintiff to provide a revised Statement of Claim within a specified timeframe. The court further outlined the specific areas where amendments were necessary to address the set-off claim and other deficiencies.

The final orders of the court included an instruction for the plaintiff to file an amended Statement of Claim within ten days, with clear instructions on the content required to address the court's concerns. The court also scheduled a further hearing to review the amended Statement of Claim and to ensure that all parties were on notice of the current state of the proceedings.

Orders