Beaumont v Chang - [2015] NSWSC 602

Supreme Court

New South Wales

Case Name:	Beaumont v Chang
Medium Neutral Citation:	[2015] NSWSC 602
Hearing Date(s):	06 April 2015
Date of Orders:	21 May 2015
Decision Date:	21 May 2015
Jurisdiction:	Common Law
Before:	Harrison AsJ
Decision:	The Court Orders: (1) The orders made by Registrar Kenna on 25 August 2014 are affirmed. (2) The defendants’ notice of motion filed 12 September 2014 is dismissed. (3) The defendants are to pay the plaintiff’s costs as agreed or assessed on an ordinary basis.
Catchwords:	PROCEDURE – review of decision of Registrar to allow the plaintiffs to file a further amended statement of claim – whether evidence and not material facts pleaded – whether insufficient particulars provided
Legislation Cited:	Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 Fairlight AU Pty Ltd v Peter Vogel Instruments Pty Ltd [2013] FCA 1280 Hurley v McDonalds Australia Ltd [1999] FCA 1728; (2000) ATPR 41-741 Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; [2002] NSWCA 44 Noun v Pavey [2013] NSWSC 846 Southern Cross Exploration NL v Fire & All Risks Insurance Co (1985) 2 NSWLR 340 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389
Category:	Principal judgment
Parties:	Paul Ernest Beaumont (First Plaintiff) Brimbella Pty Ltd atf Judith Beaumont Settlement Trust (Second Plaintiff) Andrew Alexander Chang (First Defendant) Jaza Pty Ltd ACN 096 790 402 (Second Defendant)
Representation:	Counsel: C D Freeman (First and Second Plaintiffs) R Tregenza (First and Second Defendants) Solicitors: Nelson McKinnon (First and Second Plaintiffs) Watson Stafford Zipkis (First and Second Defendants)
File Number(s):	2011/257723
Publication Restriction:	Nil

JUDGMENT

HER HONOUR: This notice of motion involves a review of the Registrar’s decision in allowing two amendments to a pleading. It is of short compass.
By notice of motion filed 12 September 2014, the defendants seek an order that pursuant to Rule 49.20 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) the decision of Registrar Kenna made on 25 August 2014 be set aside on review, and that there be substituted in lieu of that decision that the plaintiffs be granted leave to file the further amended statement of claim (“FASC”) in the form as sought by the plaintiffs in the affidavit of their solicitor, Mr Agosta, made on 26 June 2014 (being part of annexure C to that affidavit) but excluding lines 2 and 3 of subpara 23B(a)(xiii); or alternatively, in the event that the further amended statement of claim has been filed then lines 2 and 3 of subpara 23B(a)(xiii) be struck out. On 25 August 2014, the Registrar granted leave to the plaintiffs to file and serve a FASC.
The first plaintiff is an ophthalmic surgeon Paul Ernest Beaumont (“Dr Beaumont”) and the second plaintiff is Dr Beaumont’s family corporate trustee, Brimbella Pty Ltd atf…

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.

Keep reading for free

Create a free CaseChat account to read Beaumont v Chang and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWSC 602
Decision Date: 21 May 2015

CaseChat Overview and Summary

Beaumont and Chang were the parties involved in this dispute, which pertained to the review of a decision by the Registrar to allow the plaintiffs to file a further amended statement of claim. The central issue was whether the two additional lines included in the further amended statement of claim were evidence rather than material facts, as required under the Uniform Civil Procedure Rules (UCPR) 14.7, and whether they provided sufficient particulars as mandated by UCPR 15.3. The court was tasked with determining the validity of these assertions and the appropriate course of action regarding the further amended statement of claim.

The court examined whether the two lines in question constituted evidence rather than material facts, and whether they contained sufficient particulars. Dr Chang argued that the lines did not adequately convey the intent behind the alleged unconscionable conduct and instead merely outlined how Dr Beaumont intended to prove that intent. Moreover, Dr Chang contended that these lines were evidence rather than material facts, as they did not specify the dates or periods during which the representations were made. The court had to consider whether the additional lines complied with the requirements of UCPR 14.7 and 15.3 and whether they provided the necessary details to support the claim of unconscionable conduct.

In its decision, the court highlighted that a review of a registrar's decision is not an appeal, and the court must exercise its own discretion in determining whether to intervene. The court found that Dr Chang had not demonstrated an error of law or a material change in circumstances that would warrant intervention. The court also noted that even if there was an error of law, the result might still be reasonable, and the court may choose not to intervene in the interests of justice. In this case, the court concluded that the plaintiffs had not established that the court should exercise its discretion to intervene, and the decision of the Registrar was therefore upheld.

The court's final order was to dismiss the review application, maintaining the Registrar's decision to allow the plaintiffs to file a further amended statement of claim. The court found that the two additional lines in question complied with the requirements of UCPR 14.7 and 15.3 and provided sufficient particulars to support the claim of unconscionable conduct. Consequently, the plaintiffs were permitted to proceed with their further amended statement of claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

UCPR 14.7 reads:“14.7 Pleadings to contain facts, not evidenceSubject to this Part, Part 6 and Part 15, a party’s pleading must contain only a summary of the material facts on which the party relies, and not the evidence by which those facts are to be proved.” UCPR 15.3 relevantly reads:“15.3 Allegations of behaviour in the nature of fraudA pleading must give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which the party relies” Overall, the parties made the same submissions before the Registrar as they made on review. For convenience, I shall summarise them later in this judgment. Before I examine the Registrar’s decision, I should briefly set out the law on the topic of unconscionable conduct. The Trade Practices Act has been repealed and unconscionable conduct is now covered in ss 20 and 21 of the Australian Consumer Law. However, ss 51AB and 51AC of the Trade Practices Act apply to conduct that took place up to and including 31 December 2010, so are the relevant provisions here as the alleged conduct had occurred by 2006. Sections 51AB and 51AC relevantly read:“51AB Unconscionable conduct(1) A corporation shall not, in trade or commerce, in connection with the supply or possible supply of goods or services to a person, engage in conduct that is, in all the circumstances, unconscionable.…51AC Unconscionable conduct in business transactions(1) A corporation must not, in trade or commerce, in connection with:(a) the supply or possible supply of goods or services to a person (other than a listed public company); or…engage in conduct that is, in all the circumstances, unconscionable(2) A person must not, in trade or commerce, in connection with:(a) the supply or possible supply of goods or services to a corporation (other than a listed public company); or...engage in conduct that is, in all the circumstances, unconscionable.…” In Hurley v McDonalds Australia Ltd [1999] FCA 1728; (2000) ATPR 41-741, Heerey, Drummond & Emmett JJ stated (at [22]) in respect of ss 51AB and 51AC of the Trade Practices Act:“[22] For conduct to be regarded as unconscionable, serious misconduct or something clearly unfair or unreasonable, must be demonstrated – Cameron v Qantas Airways Ltd (1994) 55 FCR 147 at 179. Whatever ‘unconscionable’ means in s 51AB and s 51AC, the term carries the meaning given by the Shorter Oxford English Dictionary, namely, actions showing no regard for conscience, or that are irreconcilable with what is right or reasonable – Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 262. The various synonyms used in relation to the term ‘unconscionable’ import a pejorative moral judgment – Qantas Airways Ltd v Cameron at 283-4 and 298.” In Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389, Allsop P said at [291]:“[291] … It is neither possible nor desirable to provide a comprehensive definition [of unconscionable conduct]. The range of conduct is wide and can include bullying and thuggish behaviour, undue pressure and unfair tactics, taking advantage of vulnerability or lack of understanding, trickery or misleading conduct. A finding requires an examination of all the circumstances.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

UCPR 49.19 governs applications for review of a decision of a registrar. It reads:“49.19 Review of registrar’s directions, certificates, orders, decisions and other actsIf in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit.…” In Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Hodgson JA (with whom Ipp JA agreed) stated (at [6]-[8]):“[6] I agree that a review of a decision of a registrar is not an appeal, subject to s 75A of the Supreme Court Act; and that in such a review a court must exercise its own discretion.[7] In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar’s decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so.[8] In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v R error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one.”…” Basten JA in Tomko at [52](4)(a) stated:“a court may be less inclined to intervene in relation to a decision concerned with the management of an on-going proceeding, as opposed to one which terminates the proceeding or prevents its commencement.” Tomko was discussed in detail by Rein J in Noun v Pavey [2013] NSWSC 846. As this review concerns a decision about the ongoing management of these proceedings (not one that terminates it), I adopt the reasoning of his Honour at [18]:“[18] It follows that, in my view, the plaintiffs bear the onus of establishing that the court, in the interests of justice, should exercise its discretion to intervene and must demonstrate an error of law or an error of the kind referred to in House v R or a material change of circumstances or evidence. …” Dr Chang’s grounds for review are that the two lines added are:(a) evidence and not material facts in breach of UCPR 14.7 (evidence and not material facts?); and(b) contain insufficient particulars in breach of UCPR 15.3 (insufficient particulars). These are the same issues that were in dispute before the Registrar. So far as this issue is concerned, Dr Chang submitted that the two lines do not give a statement of the intent that Dr Chang is alleged to have had in order to act unconscionably, but that rather, they merely show how Dr Beaumont seeks to prove that intent. Dr Chang further submitted that in breach of UCPR 14.7, lines (2) and (3) are evidence, not material facts. Counsel for Dr Chang argued that no date or periods during which the representations were made are identified in the FASC. He said that Dr Beaumont alleged that Dr Chang had told the recipients of these representations that Dr Beaumont had retired, and that that makes it clear that the representations relied upon by Dr Beaumont occurred after Dr Beaumont’s exclusion from the surgery on 31 July 2006. Dr Chang submitted that the representations are not material facts because they could only have been made after the alleged unconscionable conduct occurred.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.