Angius v Salier (No 2) - [2019] NSWSC 682

Supreme Court

New South Wales

Medium Neutral Citation: Angius v Salier & Ors (No 2) [2019] NSWSC 682
Hearing dates: On the papers
Date of orders: 07 June 2019
Decision date: 07 June 2019
Jurisdiction: Equity
Before: Henry J
Decision:
(1)   Dismiss the plaintiff’s application and refuse him leave to amend and file the proposed further amended statement of claim to include at paragraphs 38 to 52 a claim for contribution in respect of a GST liability.
(2)   The plaintiff to pay the first defendant's costs in relation to the plaintiff’s application for leave to amend and file the further amended statement of claim.
(3)   Order that any costs of the first defendant relating to the plaintiff’s application that are not paid by the plaintiff under order 2 be otherwise paid from the estate of the late Laura Angius on an indemnity basis.

Catchwords: PROCEDURAL – leave to file amended pleading – where pleading is deficient and plaintiff has had five opportunities to re-plead in proper form – where claim for contribution is ambiguous about the amount paid by the plaintiff– leave refused
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 58, 64, 65
Limitation Act 1969 (NSW) s 14
Partnership Act 1892 (NSW) s 9
Uniform Civil Procedure Rules 2005 (NSW) r 15.1
Cases Cited: Angius v Salier & Ors [2019] NSWSC 184
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214
Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17
Clough v Frog (1974) 4 ALR 615; 48 ALJR 481
Galati v Deans (No 2) [2018] NSWSC 1813
Gunns Limited v Marr [2005] VSC 251
McCormick v Colonial Mutual General Insurance Co Ltd (1995) 8 ANZ Ins Cas 61-262
McGuirk v The University of New South Wales [2009] NSWSC 1424
Northam v Favelle Favco Holdings Pty Ltd (Supreme Court (NSW), 1 and 7 March 1995, unrep)
Re Kupang Resources Ltd [2018] NSWSC 1872
Tamaya Resources Ltd (in liq) v Campbell-Wilson (2016) 332 ALR 199; [2016] FCAFC 2
Category: Procedural and other rulings
Parties: John Angius (Plaintiff / Cross-Defendant)
Gordon Albert Salier AM (First Defendant / Cross-Claimant)
Angius Hotel Investments Pty Ltd (Second Defendant)
Togumi Pty Ltd (Third Defendant)
J&L Angius Pty Ltd (Fourth Defendant)
Tararba Pty Ltd (Fifth Defendant)
Angius Investment Pty Ltd (Sixth Defendant)
Robert Angius (Seventh Defendant)
Representation:
Counsel:
M Willmott SC w C Birtles (First Defendant / Cross-Claimant)
V Culkoff (Seventh Defendant)
Solicitors:
George Loupos & Associates Solicitors (Plaintiff / Cross-Defendant)
Teece Hodgson & Ward (First Defendant / Cross-Claimant)
Perez Varela Lawyers (Seventh Defendant)

File Number(s): 2016/142494

Judgment

The plaintiff is the widower of the late Laura Angius (the deceased). The first defendant is the executor of the deceased’s estate. On 1 March 2019, I gave judgment on the plaintiff’s claims for contribution against the first defendant and on the first defendant’s cross-claim against the plaintiff, which were determined…

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 Angius v Salier (No 2)

Details

AGLC: Angius v Salier (No 2) [2019] NSWSC 682
Case: [2019] NSWSC 682
Decision Date: 07 June 2019

CaseChat Overview and Summary

Angius v Salier (No 2) involved the plaintiff, Angius, seeking leave to file an amended pleading in a case against the defendant, Salier. The nature of the dispute was rooted in a claim for contribution from Salier, following a previous settlement Angius had made with a third party. The case was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether Angius should be granted leave to file an amended pleading, despite having had multiple opportunities to do so in the correct form, and whether the ambiguity in the amount paid by Angius to the third party warranted further clarification.

The court considered the procedural history of the case, noting that Angius had already been granted several opportunities to amend the pleading. The court observed that the plaintiff had failed to adhere to the court's directions and timelines, and that the proposed amended pleading still contained deficiencies. Specifically, the court highlighted the ambiguity in the amount paid by Angius, which was critical to determining the quantum of the contribution claim. The court held that the plaintiff's repeated failures to comply with the court's directions, coupled with the ongoing ambiguity in the pleading, justified the refusal of leave to file an amended pleading.

In reaching its decision, the court emphasised the importance of procedural fairness and the need for parties to comply with court directions. The court underscored that repeated failures to comply with directions, particularly when multiple opportunities have been provided, could result in the denial of further amendments. Given these factors, the court refused leave to file the amended pleading. As a result, the plaintiff's claim for contribution remained in its previous, deficient form.

Orders