Azzi v Volvo - [2006] NSWSC 249

CITATION: Azzi & Ors v Volvo [2006] NSWSC 249

HEARING DATE(S): 7 March 2006

JUDGMENT DATE :
7 March 2006

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 03/07/2006

DECISION: (1) In proceedings 50156 of 2003, I grant leave to the defendant to file an amended reply to the plaintiff's summons for relief under section 106 filed on 8 October 2002, in the form set out in annexure A to the motion filed on 6 March 2006; (2) In proceedings 50146 of 2003, I grant leave to the defendant to file an amended defence to the plaintiff's further amended summons filed on 18 February 2006, in the form set out in annexure A to the motion filed in those proceedings on 6 March 2006; (3) I order that the defendant pay the plaintiff's costs of both motions, insofar as they relate to the question of leave to amend.

CATCHWORDS: PROCEDURE - Amendment – Applications for leave to amend to raise new defences at outset of trial – no prejudice claimed – one new defence is jurisdictional – leave to amend granted – other is contrary to position previously adopted by defendant but not unarguable – whether waived or estopped – held new defence not waived or estopped, leave to amend granted

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), ss 57, 58, 64
Industrial Relations Act 1996 (NSW), s 106
Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth), s 8(1)
Trade Practices Act 1974 (Cth), ss 51AC, 52

CASES CITED: Commonwealth v Verwayen (1990) 170 CLR 394
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

PARTIES:
50146/03
Tony Azzi (Automobiles) Pty Limited (ACN 069 526 281) (First Plaintiff)
Harissa Pty Limited (ACN 620 694 61905) (Second Plaintiff)
Antonio Azzi (Third Plaintiff)
Asialink Pty Limited (ACN 003 908 898) (Fourth Plaintiff)
Volvo Car Australia Pty Limited (ACN 004 830 611) (Defendant)
50156/03
Tony Azzi (Automobiles) Pty Limited (ACN 069 526 281) (First Plaintiff)
Harissa Pty Limited (ACN 620 694 61905) (Second Plaintiff)
Antonio Azzi (Third Plaintiff)
Volvo Car Australia Pty Limited (ACN 004 830 611) (Defendant)

FILE NUMBER(S): SC 50146/03; 50156/03

COUNSEL: JL Trew QC & JE O'Sullivan (P)
JN West QC & AR Moses (D)

SOLICITORS: McClellands Lawyers (P)
Letherbarrow Lawyers (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

BRERETON J

Tuesday 7 March 2006

50146/03 Tony Azzi (Automobiles) Pty Limited & 3 ors v Volvo Car Australia Pty Limited
50156/03 Tony Azzi (Automobiles) Pty Limited & 2 ors v Volvo Car Australia Pty Limited

JUDGMENT (ex tempore)

1 HIS HONOUR: In mid-2000 the first plaintiff, Tony Azzi (Automobiles) Pty Limited, to which for the sake of convenience I will refer as TAA, in which the second plaintiff, Harissa Pty Limited, to which for the sake of convenience I shall refer as Harissa, holds 99 per cent of the shares, the other 1 per cent being held by the third plaintiff, Tony Azzi, who is the controlling mind of both companies, was appointed…

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 Azzi v Volvo

Details

AGLC: Azzi v Volvo [2006] NSWSC 249
Case: [2006] NSWSC 249
Decision Date: 7 March 2006

CaseChat Overview and Summary

The case of Azzi v Volvo involved a dispute concerning the defendant's liability for damages resulting from a car accident. The plaintiff, Azzi, alleged that the defendant, Volvo, was liable for the accident due to a design defect in the vehicle. The matter was heard in the Supreme Court of New South Wales. The defendant sought to amend its defences at the outset of the trial to include new defences. The plaintiff did not argue that the amendments would cause any prejudice. One of the new defences related to jurisdictional issues, while the other was contrary to the defendant's previous position but not necessarily unarguable.

The court was required to decide whether to grant the defendant leave to amend its defences. The court considered whether the new defences were waived or estopped due to the defendant's previous position. The court held that the new defences were not waived or estopped, and granted the defendant leave to amend its defences. The court found that the new jurisdictional defence was relevant and necessary for the defendant to properly defend itself, while the other new defence was not necessarily unarguable and could still be pursued.

The court's reasoning was based on the principle that leave to amend pleadings should be granted freely unless there is a good reason not to do so. The court found that there was no prejudice to the plaintiff in allowing the amendments, and that the defendant had a right to raise all available defences. The court also found that the defendant's previous position did not necessarily mean that the new defences were waived or estopped, as the defendant had not abandoned its right to raise them. Therefore, the court granted the defendant leave to amend its defences, allowing it to raise the new defences at trial.

The final orders of the court were that the defendant was granted leave to amend its defences to include the new jurisdictional defence and the other new defence. The court did not stay the proceedings or make any orders for costs or otherwise. The case highlights the importance of allowing parties to raise all available defences in appropriate circumstances, while also balancing the need to avoid unnecessary delay and prejudice to the other party.

Orders