Ansell Strategic Pty Ltd v Jakudo Pty Ltd
[2020] SADC 5
•28 January 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
ANSELL STRATEGIC PTY LTD v JAKUDO PTY LTD & ORS
[2020] SADC 5
Decision of His Honour Judge Chivell
28 January 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - AMENDMENT - TIME FOR AMENDMENT
Claim in contract for damages for breach of contract for professional fees charged by plaintiff for services rendered as a sale of business consultant. Interlocutory applications by the plaintiff to vacate listing of matter for trial, permission to amend the Statement of Claim and other matters. Trial listed in September 2019 for 17 February 2020. Action not certified as ready for trial when listed. Issues of disclosure and production of documents, confidentiality of documents and amendment of the Defence remained outstanding.
Plaintiff’s solicitors received change of instructions from client in November 2019 that plaintiff not registered pursuant to the Land Agents Act. Plaintiff seeks to plead alternative claim in quantum meruit for restitution/unjust enrichment. Issues of disclosure/production of documents relevant to both claim in contract and alternative claim in quantum meruit.
Factors to be taken into account in exercising discretion whether or not to grant applications.
Held: Applications granted – factors in favour of granting applications outweigh factors against.
Land Agents Act 1994 (SA) s 6(2), referred to.
Mathew (SA) Nominees Pty Ltd v Belconnen Automotive Pty Ltd [2019] SASC 39; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; Peter Mann v Paterson Constructions Pty Ltd (2019) 93 ALJR 1164; PPG Development Pty Ltd v Capitanio (2016) 126 SASR 307; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59, applied.
ANSELL STRATEGIC PTY LTD v JAKUDO PTY LTD & ORS
[2020] SADC 5
This is an application by the plaintiff, to which I will refer as ‘Ansell’, for orders that the trial of the action be vacated, that the plaintiff have permission to amend its Statement of Claim, and for other orders.
The trial is listed to commence on Monday, 17 February 2020.
The applications were foreshadowed by Mr Ross-Smith, counsel for the plaintiff, on 12 December 2019 at a directions hearing. The defendants made it clear on that occasion that the applications were opposed. Counsel for the defendants, Mr McCarthy, was about to commence a vacation. The matter was set for hearing on 20 December 2019, but I was unwell that day and unable to hear it.
The applications were adjourned to 20 January 2020 for argument. Mr Ross‑Smith appeared for Ansell, and Mr Tokley SC for the defendants. Both counsel provided written outlines of argument, for which I am grateful. Ansell also prepared an extensive book of documents for the purposes of the argument, which was also helpful.
The need for a prompt response to these applications is obvious. The parties need to know where they stand as soon as possible before 17 February 2020. For that reason, these remarks will be brief. Hopefully, they will be sufficient to inform the parties as to the reasoning I have adopted.[1]
[1] See the remarks of Doyle J in Mathew (SA) Nominees Pty Ltd v Belconnen Automotive Pty Ltd [2019] SASC 39 at [53]-[55].
The applications were made approximately two months before the trial. The defendants complain that their trial preparation is well advanced and would be wasted if the applications are granted. Mr McCarthy planned to have most of it done before his vacation. He is not returning from overseas until early February. This was not known to Ansell. Mr Ross-Smith told me that he first heard about Mr McCarthy’s absence on 12 December 2019.
As presently pleaded, Ansell’s claim is in contract. Ansell provides consulting and advisory services in relation to the ‘renewal and sale of assets owned or controlled by its clients’[2] in the aged care industry. The defendants owned assets comprising and associated with three separate aged care facilities in Adelaide.
[2] Statement of Claim, [3].
Each defendant company was owned and controlled by members of the Bennett family, and the business was known as ‘the Bennett Aged Care Group’ or ‘the Bennett Group’.
It is alleged by Ansell that in 2017, the defendants engaged Ansell, pursuant to written agreements, to assist them in the proposed sale of the assets of the companies. Ansell performed certain work pursuant to the agreements. However, the defendants repudiated the agreements, in that the companies did not give Ansell ‘the necessary instructions to advance the sale’ in each case. Ansell terminated the agreements in accordance with their terms on 7 September 2017.
Ansell says that within six months of the termination, some or all of the assets of the defendants were sold to an entity associated with Mr Viv Padman. I will refer to these sales as the ‘subsequent transactions’.
Ansell now sues the companies for its fees, calculated in various ways, pursuant to the agreements. The proceedings were commenced by Summons and Statement of Claim dated 3 September 2018. Included in the claim in the case of two of the companies[3] was a claim for a ‘success fee’ based on a percentage of the total value of the ‘cash and non-cash consideration’ received by the defendants from a sale of the assets to a third party within six months of the termination of the agreement. Such a fee is provided for in clause 5.2(5) of the Letter of Engagement in each case.
[3] Jakudo Pty Ltd as trustee for the Lewis Nursing Home Trust and Gramar Nominees Pty Ltd as trustee for the Bennett Family Trust.
In its Statement of Claim, Ansell pleaded against the first defendant:
36.Ansell has sought information from Jakudo about the subsequent Kensington Facility Transaction but Jakudo has refused to provide those details.
37.The amount payable by Jakudo to Ansell constituting the Kensington Facility Success Fee is 1.95% of the total value of the cash and non-cash consideration received or to be received by Jakudo on the subsequent Kensington Facility Transaction.
38.For the reasons given in paragraph 36 of this pleading Ansell cannot currently give particulars of the amount of the Kensington Facility Success Fee.[4]
[4] See also [72], [74], [75] of the Statement of Claim in relation to the assets of the second defendant.
On 21 November 2018, by consent, the parties were ordered to provide disclosure by 23 January 2019.
Having regard to the ‘success fee’ provisions of the contract, Ansell was clearly entitled to disclosure of the ‘cash and non-cash consideration’ received by the defendants from the subsequent sale of the assets. These documents were specifically requested by letter from Ansell’s solicitors to the defendants’ solicitor dated 27 November 2018.[5]
[5] Affidavit of Jordan Lawrence Hurley, sworn 19 December 2019, [5], Exhibit “JLH-1”.
The defendants filed a List of Documents on 30 January 2019. A further List of Documents was filed on 20 May 2019.
On 7 June 2019, Master Norman ordered the defendants to produce copies of the disclosed documents, and provide a Third List of Documents forthwith. These orders were not complied with. On 15 July 2019, the Master extended time for compliance to 16 August 2019. On that date, a Third List of Documents was filed disclosing the existence of documents relating to the subsequent transactions. On the same day, the defendants applied for orders protecting the ‘confidentiality’ of the documents relating to the subsequent transactions. This was dismissed on 28 October 2019. On 29 October 2019, Ansell’s solicitors requested copies of the documents. The defendants’ solicitors did not provide copies of the documents until 14 November 2019, despite many requests and one wasted trip to their office by a solicitor employed by the agents of Ansell’s solicitors. These failures to produce copies of the documents were breaches of orders made by Master Norman going back to June 2019.
I accept the submission of Ansell that it was always intended to seek an amendment of its Statement of Claim to give particulars of the claim for a ‘success fee’ once the information in the subsequent transactions documents was made available. It had foreshadowed that intention in the first Statement of Claim.[6]
[6] See [38], [74], quoted above.
Mr Ross-Smith was on vacation from 19 November 2019 to 9 December 2019. The matter was in court before me on 12 December 2019, only three days after his return. I reject the defendants’ submission that the delay between 14 November 2019 and 12 December 2019 was unacceptable in the circumstances. In view of the defendants’ conduct prior to producing the copies of documents, this criticism is very surprising.
Quantum Meruit
Ansell also seeks permission to amend its Statement of Claim to add an alternative claim to be paid a reasonable sum for the work done for the defendants in accordance with the principles in Pavey & Matthews Pty Ltd v Paul.[7] This application is a response to a pleading by the defendants that Ansell did not hold a licence under the Land Agents Act 1994 (SA) and is not entitled to payment for its services as an agent.[8] Without conceding the merits of this proposition, Ansell seeks to add a claim in quantum meruit as an alternative to its claim in contract.
[7] (1987) 162 CLR 221.
[8] s 6(2).
In Pavey & Matthews, a builder was prevented from enforcing its contract for building work because it did not have a contract in writing as required by the relevant New South Wales legislation. The High Court held that it was not prevented by the legislation from bringing an action upon a quantum meruit for the value of the work done and materials supplied. Mason, Wilson and Deane JJ held that such a claim was based on equitable principles of restitution or unjust enrichment.[9]
[9] See Mason and Wilson JJ at p. 227 and Deane J at p. 255-56.
Mr Tokley submitted that Ansell cannot claim under quantum meruit. He cited Peter Mann v Paterson Constructions Pty Ltd[10] as authority for the proposition that an action for quantum meruit is not available where, as here, the plaintiff has terminated a contract on the ground that the defendant has repudiated it.
[10] (2019) 93 ALJR 1164; [2019] HCA 32.
Peter Mann was a case where the Victorian legislation governed the ability of a builder to recover payment for owner-initiated variations to the contract. Unless the provisions of the Act were complied with, the builder was not entitled to recover payment for any such variations.[11] The court held that the legislation prevented recovery by way of quantum meruit for any such work.[12]
[11] See Nettle, Gordon and Edelman JJ at [157].
[12] See Nettle, Gordon and Edelman JJ at [160].
As to work which was not a variation covered by the legislation, in a case where a contract has been terminated by a party accepting the other party’s repudiation of the contract, which is what is alleged in this case, Kiefel CJ, Bell and Keane JJ held:[13]
It may be that in some cases justice will not be done without a restitutionary claim. Different considerations may apply in cases where advance payments are sought to be recovered by restitutionary claims for money paid, although it may be that the law of contract adequately provides for such cases. “There will generally be no need to have recourse to a remedy in restitution” where a claim in contract is available. In the present case, there is no good reason to consider that damages for breach of contract would fail to meet the justice of the case such that a restitutionary claim for quantum meruit should be available. It is not necessary to consider the position in other contexts or with respect to other restitutionary claims as the present case is concerned only with a claim for remuneration for work and labour done under a contract terminated for repudiation or breach.
[Citations omitted]
[13] At [53].
Nettle, Gordon and Edelman JJ held:[14]
As the law stands in Australia, as it does in England, New Zealand, Canada and the United States, upon termination for repudiation of an uncompleted contract containing an entire obligation (or, as will be seen, divisible stages) for work and labour done, the innocent party may sue either for damages for breach of contract or, at the innocent party’s option, for restitution in respect of the value of services rendered under the contract.
[References omitted]
[14] At [166].
This point was not the subject of extensive argument before me, but I am presently unable to discern any indication by the High Court in Peter Mann that a plaintiff is not entitled to sue in contract or, in the alternative, in quantum meruit after having terminated a contract. In each case, the action is for rights accrued prior to termination.
If, in this case, Ansell succeeds in contract, and the Land Agents Act objection fails, then, as Kiefel CJ, Bell and Keane JJ point out in the passage quoted above:
“There will generally be no need to have recourse to a remedy in restitution” where a claim in contract is available.
If the defendants’ objection succeeds, and the claim in contract fails, I see nothing in the judgments of their Honours in Peter Mann which prevents the court from considering an alternative claim in quantum meruit.
Delay
The defendants complain that the Land Agents Act issue was first raised in their first Defence, which was filed on 26 September 2018. They submit that Ansell was put on notice of the issue then, and has had ample time to plead its quantum meruit claim and make the necessary preparations for trial, including obtaining expert evidence, before now.
The evidence of Mr Rickarby, Ansell’s solicitor,[15] was that in about November 2019, he learned from his client for the first time that Ansell was not registered as an agent under the Land Agents Act. Prior to that, his instructions were that Ansell was so registered. It is Ansell’s submission that, on its earlier instructions, the need to plead an alternative claim, in the Statement of Claim, in quantum meruit did not arise.
[15] Affidavit of Alexander James Parramore Rickarby, sworn 18 December 2019, [44]-[48].
The failure to obtain satisfactory evidence of the registration position by Ansell after the filing of the first Defence in September 2018 is surprising. The error is acknowledged. Mr Ross-Smith said that Ansell is ‘entirely to blame’.[16]
[16] T 3.
It is true that Ansell made a claim in quantum meruit in its Reply, filed on 22 November 2018. However, the amendments now sought go beyond what is in the Reply.
There is little explanation as to why, at the time the Reply was filed, Ansell did not initiate the obtaining of expert evidence to prove the reasonableness of its quantum meruit claim.
The same criticism applies to the defendants. They were put on notice by the Reply that Ansell was claiming in quantum meruit. There is no evidence that they have sought further and better particulars of that claim. It makes little difference that the claim is in the Reply rather than the Statement of Claim. Further, there is no evidence as to why they did not initiate the obtaining of expert evidence to challenge the reasonableness of Ansell’s claim at the time the Reply was filed.
I accept that the non-disclosure of copies of correspondence between the defendants and the eventual purchaser is relevant to both the claim in contract and a claim in quantum meruit. In both cases, Ansell would have to establish that its endeavours were causatively relevant to the eventual successful sale.[17]
[17] See the extract from Australian Encylopaedia of Forms and Precedents, and from G E Dal Pont, Law of Agency, 3rd ed., 2014 at [15.85].
For this reason, even if Ansell had been given permission to amend its Statement of Claim in February 2019, it is highly likely that it would need to amend it further once the subsequent transactions documents were disclosed and produced by the defendants, which was not until 14 November 2019.
The Post-Termination Documents
In September 2019, Ansell requested disclosure of correspondence between the defendants and Mr Padman on behalf of the ultimate purchasers of the defendants’ assets. This request was additional to the request for the subsequent transactions documents. The defendants’ solicitor, Mr Wadlow, advised Ansell by letter dated 5 September 2019 that the defendants agreed that the documents were relevant.[18] Mr Wadlow referred Ansell to the affidavit of Mr Michael Bennett sworn 14 July 2019. Mr Bennett outlined the difficulties he was experiencing in locating and producing relevant documents to comply with Master Norman’s orders in relation to disclosure. He deposed:
[18] Affidavit of Alexander James Parramore Rickarby, sworn 18 December 2019, [53].
15.The Defendants had a practice of filing and saving electronic documents and still do. I suspect because this dispute was unusual, the documents have not been filed in a logical way, as they do not belong to a client, or usual service provider, a usual creditor or debtor or an ongoing business contact.
16.I recall putting documents such as print outs of documents related to this matter in my out tray for filing. I recall print outs of contracts of engagement and other documents. I do not delete emails, other than irrelevant or junk emails, and they are automatically archived. I do not throw out business documents.
17.However, neither I or my IT Manager have been able to work out where the electronic documents related to this matter have been archived or filed. I was also unable to find copies of documents in physical files. I sought help from administrative staff of the Defendants to assist me, in that regard.
18.This has been complicated by two of the Defendants nursing home facilities and businesses being sold. When that occurred, there was a provision of current and past computer files and actual files essential for the ongoing running of the nursing home facilities being transferred to the new operators. I understood copies were archived for the Defendants purposes.
19.I understand from my discussions with the Defendants staff arranging the transfer of the businesses, including the IT manager, that transfer and archiving was done following nursing home protocols and litigious issues such as this matter, were not singled out and stored separately, during the process.
20.It has been an extremely time-consuming task for me opening electronic files and searching to find there is nothing related to this matter. I have always believed and still do believe that I will find the electronic and physical files in this matter. I suspect they have been filed somewhere, probably as a subfile, that seemed logical at the time, but now is not recalled or obvious.
21.I suspect the same applies to the physical file. It has probably been misfiled or misplaced due to due diligence, the sales process or simply due to it being an unusual topic or subject file.
And later:
45.I have conducted further searches this weekend due to the request of Blake Wadlow on 10 July 2019. I have still not found the documents. I cannot swear an affidavit of disclosure on oath at this stage, but I will do so once I have completed the searches explained above.
Thus it is the defendants’ position that the documents requested by Ansell do exist, but they were unable to produce them in July 2019.
I accept Ansell’s submission, as indeed Mr Wadlow does, that the documents are relevant. If the defendants are unable to produce the documents, Ansell is left with the alternative course of seeking non-party disclosure from the purchasers of the assets. This could not feasibly be done by 17 February 2020.
In answer to the possible criticism that Ansell should have initiated a non‑party disclosure application in July 2019, the defendants have never indicated that they will never be able to provide disclosure. I reject Mr Wadlow’s suggestion in his letter of 5 September 2019:[19]
We agree that “relevant documents are not limited to the Contracts and Asset Sale Agreements.” This has been specifically addressed by Mr Bennett in his Affidavit sworn 15 July 2019 exhibiting the Third List of Documents. Therefore, the Defendants are not in a position to provide the further list sought. Again, the explanation as to why certain documents may not have been disclosed has been addressed in Mr Bennett’s Affidavit.
Given the Affidavit of Mr Bennett, it would be unwise to make further Interlocutory Applications and will only increase costs of the action for parties.
[19] Quoted in the affidavit of Alexander James Parramore Rickarby, sworn 18 December 2019 at [53].
Mr Bennett did not say he was unable to provide disclosure. He said he was continuing the search and believed he would find the documents. He said this in June 2019. Mr Wadlow’s letter is three months later. There is no evidence as to what Mr Bennett had done in the meantime to find the documents.
In my view, Ansell was entitled to await the outcome of the disclosure arguments before Master Norman before being required to embark upon a program of third party disclosure applications. This did not occur until 14 November 2019.
The Matter was Listed for Trial
The action was referred to a listing conference by Master Norman on 15 July 2019. Mr Ross-Smith told me from the bar table that he urged the Master to do so. He explained that he sought an early hearing date to compensate for the delays caused by the defendants’ failure to provide appropriate disclosure. He pointed out that he had not received the ‘new instruction’ by then. In the absence of the ‘new instruction’, he considered that the only outstanding matter was to complete the disclosure of the subsequent transactions documents, deal with the ‘confidentiality’ application[20] and apply to amend the Statement of Claim to particularise the ‘success fee’ claims. The defendants had still not filed their Second Defence by then,[21] so any further pleading arising from that would also need to be done.
[20] This was refused on 28 October 2019.
[21] This was filed on 23 August 2019. The Master held that it was inadequate, so it was ordered that a Third Defence be filed by 6 November 2019. It was filed on 22 November 2019. The plaintiff has not yet amended its Reply.
It must have been obvious to all concerned that the matter was not then ready for trial. The Master waived the requirement of DCCR 120A(2) that the parties certify the matter as ready for trial.
At that stage, the defendants had not yet filed their Third List of Documents verified by Mr Bennett on oath.
On 16 August 2019, the defendants made application for security for costs and confidentiality of documents, both of which applications were subsequently refused.
On 23 August 2019, the defendants filed their Second Defence.
Mr Tokley submitted that, having pushed for an early trial, Ansell should now bear the consequences of that forensic decision. I do not accept that submission. All forensic decisions in litigation are made in the context of the action at the time. To adopt such a rigid approach is not realistic, and will not necessarily achieve a just result. A party cannot be prevented from raising issues which arise after the setting down of a matter for trial simply because it had supported or even urged the court to list the matter for trial. I am entitled to look at all the circumstances, not just those circumstances prevailing at the time the decision was made.
I reject Mr Tokley’s submission that Mr Ross-Smith’s attitude at the directions hearing on 15 July 2019 is a reason to refuse his application to vacate the listing now.
Factors to be Considered
In PPG Development Pty Ltd v Capitanio,[22] Doyle J summarised the factors to be considered in the exercise of the discretion to grant Ansell’s applications or not.
[22] (2016) 126 SASR 307; [2016] SASC 169.
PPG involved an application by the defendants to add a defence which had not previously been raised, was made orally after the trial had started, after PPG had closed its case, during the defendant’s case, after an adjournment, when new counsel appeared for the defendants. That was a factual scenario somewhat reminiscent of the scenario in Aon Risk Services Australia Ltd v Australian National University.[23] The amendment applications occurred in both of these cases much later than the application in the case before me. The disruption, wasted court time and public resources, and frustration and agitation of the parties were significant in those cases. In both cases, the application to amend was refused.
[23] (2009) 239 CLR 175.
In applying the principles adumbrated in Aon, as applied by the South Australian Full Court in Channel Seven Adelaide Pty Ltd v Manock,[24] Doyle J identified a number of factors to be considered.[25] I set them out, with commentary applicable to the present case:
[24] [2010] SASCFC 59.
[25] At [39].
1.The nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law.
The application to amend the Statement of Claim to quantify the success fee, in light of the late production by the defendants of the relevant documents, is completely justified.
The ‘new instruction’ that it was not Ansell but Mr Campbell Ansell, the principal of the business and the person who performed the services, who was registered under the Land Agents Act, concerns a material fact. The lateness of its discovery is the fault of Ansell. It raises an issue of law as to whether the contract is enforceable by Ansell. Ansell is likely to suffer significant prejudice if it is prevented from pursuing a claim in quantum meruit, or restitution, in the event that the contract is held to be unenforceable.
I accept the defendants’ submission that the proposed amendments are substantial and raise a number of legal and factual issues. There will need to be further pleading by both sides. Further evidence needs to be obtained, by way of third party disclosure and then expert evidence. The extent of these further issues illustrates that the matter was not ready for trial in September 2019, and is still not ready.
The defendants argue that the errors made by Ansell should not be visited on the defendants. This submission would carry greater weight if the defendants’ behaviour had been exemplary. It has been far from exemplary. I consider that each side has contributed significantly to the present state of affairs.
2.The merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable.
Both proposed amendments are arguable and tenable. I reject the defendants’ submission that the claim in quantum meruit is untenable based on the Peter Mann decision.
3.The stage of the litigation at which the application to amend is made, and the likely impact upon, or disruption to, the progress of the proceedings (and in particular the trial).
The application was made at a late stage, but two months or so before trial. This is a much earlier stage than was the case in either Aon or PPG. The defendants say they are in the late stages of preparation, but that was due to Mr McCarthy’s vacation. Ansell was not aware of that.
The trial will probably be postponed for six months or so. Although that is to be regretted, the proceedings have been on foot for only just over a year. That is not an excessive period according to modern practice.
4.The explanation for the application to amend and its timing, and the fact and extent of any undue delay in this regard.
The application is late. I accept that the application to add the quantum meruit claim was brought about by the ‘new instruction’ about Land Agent Act registration. That was inadvertence, and not the result of a forensic decision later regretted. I think it was understandable in the circumstances.
5.Whether the party has had a sufficient opportunity to plead their case earlier.
The pleading of the success fee had to await production of the copies of the sale documents, which did not occur until mid-November 2019.
The claim under quantum meruit could have been pleaded in the Statement of Claim earlier, but the urgency of its pleading was overlooked until the ‘new instruction’ was received. Amendments to any such earlier pleading would probably have been necessary once the subsequent transactions documents were received. It was pleaded in the Reply.
6.The time, cost and inconvenience associated with any delay or disruption of the proceedings.
This will be substantial, although once a new trial date is fixed, the preparation should run more smoothly than it has in the last 12 months. Each party has contributed to the current situation. Orders for costs thrown away should ameliorate any difficulties suffered by the defendants.
7.The uncertainty and strain of litigation on the parties and their witnesses as a result of any disruption or delay likely to be occasioned by the amendment.
This will also be considerable. I take into account the medical evidence concerning the health of both Mr Michael Bennett and Mr Graham Bennett, his father, who is 83 years old. I accept that they will be under stress and that their conditions will be difficult to resolve until the litigation finishes. Having said that, Mr Michael Bennett’s affidavit demonstrates that there have been several other factors operating upon him which would have created at least as much stress and strain upon him as would these proceedings.[26] In the case of Mr Graham Bennett, he has been suffering from the same medical conditions for some years. The stress and strain on Mr Graham Bennett is unfortunate, but the defendants must bear some responsibility for any delay.
8.The impact of any delay and disruption upon judicial and court resources, and the access of other litigants to those public resources.
This factor is important, as the High Court pointed out in Aon, and had not received the degree of prominence before Aon that it now does.
Having said that, it is noteworthy that Master Norman was able to give the parties a trial date only five months or so from setting down. By historical standards, this is a short delay and other litigants are unlikely to be denied access to court resources if the trial is adjourned.
9.The impact upon the public’s confidence in the just and efficient administration of justice.
The conduct of this litigation so far does not bring credit upon either party. The exercise of the discretion is not about blaming one party or another for what has happened, but is about seeking to achieve a just result. In that way, the public’s confidence in the administration of justice can be best maintained.
[26] Affidavit of Michael John Bennett sworn 14 July 2019, [22]-[37].
Weighing all these factors is not an easy task. Doing the best I can, I conclude that to allow Ansell’s applications will produce a result that is more likely to achieve justice between the parties. I consider that the prejudice which would be suffered by Ansell by refusing the applications outweighs the factors identified by the defendants in opposition to the applications.
I allow Ansell’s applications.
I will hear the parties as to the terms of the orders to be made.
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