Bastas v Hodes - [2009] NSWSC 968

CITATION: Bastas v Hodes [2009] NSWSC 968

HEARING DATE(S): 14 September 2009

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 14 September 2009

DECISION: Application refused.

CATCHWORDS: PROCEDURE - Miscellaneous Procedural Matters - Amendments - amendment sought on first day of a four day trial to extend from 65 to 196 the number of entities said to have been solicited by the defendant to take their work to another firm of chartered accountants he was to join and to bifurcate the hearing into one as to liability and one as to damages - defendant would seek adjournment if amendments allowed - no explanation of delay in bringing the application - clear prejudice if proceeding bifurcated - Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (2009) 83 ALJR 951 considered

LEGISLATION CITED: Civil Procedure Act 2005

CATEGORY: Procedural and other rulings

CASES CITED: State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1996-1997) 189 CLR 146
Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841
Dekkan v Picciau [2008] NSWCA 18
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 83 ALJR 951

PARTIES: Elias Bastas (First plaintiff)
David Millard Lawson (Second plaintiff)
David Rooney (Third plaintiff)
John Edward Hodes (Defendant)

FILE NUMBER(S): SC 3346/07

COUNSEL: P O'Loughlin (Plaintiffs)
A McInerney (Defendant)

SOLICITORS: JGP Lawyers (Plaintiffs)
HWL Ebsworth Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 14 SEPTEMBER 2009

3346/07 ELIAS BASTAS & ORS v JOHN EDWARD HODES

EX TEMPORE JUDGMENT

1 On the opening of a case set down before me for four days an application is made to amend the statement of claim in three respects.

2 First, the allegation of breach of contract in the pleading is sought to be expanded. The first aspect of the contractual claim in paragraph 32 of the statement of claim relates to an alleged failure of the defendant, John Edward Hodes, to adopt a plan with respect to his former clients transferred to an earlier partnership of which the current plaintiffs, Elias Bastas, David Millard Lawson and David Rooney, are its present members. Under the second aspect in paragraph 32(g), 65 entities are identified as former clients of Mr Hodes and it is alleged that he solicited them on or before the cessation of his employment by the current partners to bring their work to him at another firm of chartered accountants. By the proposed amendment the current partners seek to replace the 65 entities with an expanded list of 196 entities.

3 Secondly, it is sought to delete a loss of profits claim referred to in paragraphs 47 and 50 of the statement of claim. No opposition is raised to that amendment save that Mr Hodes will argue that the costs thrown away in preparation for trial of that issue should be the subject of a special order.

4 Thirdly, there is a proposed amendment to the relief claimed…

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 Bastas v Hodes

Details

AGLC: Bastas v Hodes [2009] NSWSC 968
Case: [2009] NSWSC 968
Decision Date: 14 September 2009

CaseChat Overview and Summary

Bastas v Hodes involved a procedural dispute in the Federal Court of Australia, concerning amendments to a statement of claim. The plaintiff, Bastas, sought to amend the statement of claim on the first day of a four-day trial. The amendment intended to increase the number of entities claimed to have been solicited by the defendant, Hodes, to transfer their work to another firm of chartered accountants he was to join, from 65 to 196. Furthermore, the plaintiff proposed to bifurcate the hearing into two parts, one for liability and one for damages. The defendant indicated that if the amendments were allowed, they would seek an adjournment, but provided no explanation for the delay in making the application.

The primary legal issue before the court was whether the plaintiff's proposed amendments should be allowed on the first day of trial, given the substantial nature of the changes and the significant prejudice that could result from bifurcating the hearing. The court considered the principles established in Aon Risk Services Australia Limited v Australian National University, which highlighted the importance of maintaining the efficiency of the trial process and protecting against unnecessary delay and prejudice. The court also had to weigh the factors relevant to the grant of amendments under the relevant procedural rules.

The court held that the proposed amendments were significant and would cause substantial prejudice if allowed, particularly by disrupting the planned trial process and requiring an adjournment. The plaintiff had failed to provide an adequate explanation for the delay in making the application, which further undermined the case for allowing the amendments. The court determined that the prejudice to the defendant outweighed any potential benefit to the plaintiff, and therefore refused the application. The court's decision underscored the need to balance the interests of both parties and to adhere to the principles of procedural fairness and efficiency.

Orders