Bendigo and Adelaide Bank Ltd v Abdelkodous
[2014] NSWSC 633
•21 May 2014
Supreme Court
New South Wales
Medium Neutral Citation: Bendigo and Adelaide Bank Ltd v Abdelkodous [2014] NSWSC 633 Hearing dates: 21 May 2014 Decision date: 21 May 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. Leave granted to the Plaintiff to amend the Third Further Amended Statement of Claim by the filing of a Fourth Further Amended Statement of Claim in the form annexed to the affidavit of Vanessa Marie Magee sworn 9 May 2014.
2. Plaintiff to file Fourth Further Amended Statement of Claim by close of business on 23 May 2014.
3. Fourth Defendant to file any Amended Defence to Fourth Further Amended Statement of Claim by 10 June 2014.
4. Any Defences other than by Fourth Defendant to the Fourth Further Amended Statement of Claim are to be served on the Plaintiff (but not filed) by close of business on 4 June 2014.
5. Plaintiff to serve any further evidence to be relied on by 30 May 2014.
6. Fourth Defendant to serve any further evidence to be relied on by 13 June 2014.
7. Remaining Defendants to serve any proposed further evidence in reply on the Fourth Defendant by 4 June 2014. The Court will decide on 6 June 2014 whether such evidence may be relied upon.
8. First and Second Defendants to serve any proposed cross-claim against the Fourth Defendant and any further evidence to be relied on by 28 May 2014.
9. Fourth Defendant to advise as to consent or otherwise to such proposed cross-claim by 30 May 2014.
10. If not consented to, First and Second Defendants to file a Notice of Motion by 2 June 2014 returnable before Davies J at 2pm on 6 June 2014.
11. Plaintiff and Fourth Defendant to pay any costs thrown away by reason of the amended pleadings.
12. No other order as to the costs of today.
13. Listed for Directions before Davies J at 2pm on 6 June 2014.
14. Liberty to apply on 2 days' notice.
Catchwords: PROCEDURE - pleading - late filing of amended defence raising new issues of law - hearing date imminent - whether Defendant should be permitted to be filed - whether Plaintiff should be permitted to plead a further form of the Statement of Claim to answer new Defences - little or no further evidence needed - leave given to both parties - Amended Defence purports to withdraw deemed admissions to numerous paragraphs of Statement of Claim - no explanation for the making of the admissions nor why they were wrongly made - Amended Defence not permitted to withdraw admissions Legislation Cited: Corporations Act 2001 (Cth)
Uniform Civil Procedure RulesCategory: Interlocutory applications Parties: Bendigo and Adelaide Bank Ltd (Plaintiff)
John Abdelkodous (First Defendant)
Nadia Abdelkodous (Second Defendant)
Combined Home Loans Pty Ltd (Third Defendant)
Karl Damien (Fourth Defendant)
Victor Abdelkodous (Fifth Defendant)
George Shad t/as Shad Partners (Sixth Defendant)
Peter Pitson t/as Asset Conveyancing Enterprises (Seventh Defendant)Representation: Counsel:
A McInerney SC (Plaintiff)
A Tibbey (First and Second Defendants)
No appearance (Third Defendant) (Wound Up)
H Stitt (Fourth Defendant)
No appearance (Fifth Defendant - Bankrupt)
S Vrtkovski (Sixth Defendant)
J Chapman (Seventh Defendant)
A Rogers (Registrar-General: Cross-Defendant) - Excused
Solicitors:
Gadens Lawyers (Plaintiff)
P Baker (First and Second Defendants)
No appearance (Third Defendant)
WKA Legal (Fourth Defendant)
No appearance (Fifth Defendant)
Gilchrist Connell (Sixth Defendant)
Maccallum Lawyers Pty Ltd (Seventh Defendant)
Solicitor for the Registrar-General (Registrar-General: Cross-Defendant)
File Number(s): 2005/268447
Judgment
These proceedings commenced on 23 November 2005. I have been case managing them since early 2012 and endeavouring to push them to a trial date. The Statement of Claim had been amended a number of times. At the present time, the extant Statement of Claim is called the Third Further Amended Statement of Claim filed on 19 December 2013.
The prior iteration of the Statement of Claim was a Second Further Amended Statement of Claim filed on 28 May 2012. To that Statement of Claim, the Fourth Defendant filed a Defence on 3 August 2012. The Defence made specific answers to a number of paragraphs of the Second Further Amended Statement of Claim but was silent in relation to a large number of the paragraphs. Most of those paragraphs, it may be acknowledged, were matters that pleaded facts against other defendants in the proceedings and might only be thought to have been indirectly relevant to the Fourth Defendant.
When the matter came before me for further directions on 3 April, Mr Hamish Stitt, of counsel, announced his appearance for the Fourth Defendant. He had recently come into the matter as I think had his solicitor. He indicated at that time that he wanted leave to amend the Defence of 3 August 2012 and he indicated a number of matters which he would seek to plead, including a limitation defence, issues of agency, contributory negligence and proportionate liability as well as the question generally whether the Fourth Defendant was personally liable to the Plaintiffs.
I gave him leave to file such a Defence. The Defence was filed on 16 April 2014. It raised the matters of substance that Mr Stitt had identified. however, it also purported to plead to the paragraphs in the Statement of Claim that had not previously been traversed in the Defence of 3 August 2012. It should be said at this point that there was no change at all to the pleading against the Third and Fourth Defendants from the Second Further Amended Statement of Claim to the Third Further Amended Statement of Claim. The non-admission and denial of these paragraphs not previously traversed amounted to an attempt to withdraw the deemed admissions that arose by operation of r 14.26 UCPR.
The filing of that Defence resulted in a Motion being filed by the Plaintiff on 9 May 2014 which sought two substantive prayers for relief. The first was that I should revoke the leave I gave to the Fourth Defendant to file the Defence that was filed on 16 April. The second substantive prayer was that the Plaintiff be given leave to amend the Third Further Amended Statement of Claim by filing a Fourth Further Amended Statement of Claim. These two prayers for relief were in a sense put in the alternative because if I revoked the leave to the Fourth Defendant, so as to not permit the filing of any further defence, it would not be necessary for the Plaintiff to amend its claim further.
I should note at this point that the trial of the whole of the proceedings is fixed for 21 July this year and a mediation had been set down for 25 June. An important consideration for me was whether, allowing the Defence filed on 16 April, would prejudice those dates and whether permitting the Plaintiff to file another form of the Statement of Claim would also put in jeopardy those dates.
I am satisfied from what has been put to me this morning by Mr McInerney SC and Mr Stitt that if I was to permit the substantive defences in the Defence of 16 April 20 to stand, those defences could be appropriately met by permitting the Plaintiff to file the Fourth Further Amended Statement of Claim. Any further evidence in relation to those two pleadings would be minimal and would be able to be dealt with easily in the time before the mediation and the trial.
The proposed Fourth Amended Statement of Claim alters the pleading only against the Fourth Defendant. In one regard, it restores a pleading based on a guarantee given by the Fourth Defendant for the performance by the Third Defendant of its obligations under an Origination Deed. That pleading had previously appeared in paragraph 51 of the Amended Statement of Claim, but perhaps inadvertently omitted from the Second and Third Further Amended Statements of Claim.
The Third Defendant was wound up on 11 November 2013, that is, on a date between the filing of the Second and Third Further Amended Statements of Claim. Mr Stitt argued that allegations in the proposed Fourth Further Amended Statement of Claim against the Third Defendant should not, therefore be allowed because leave would be necessary under s 471B Corporations Act 2001 (Cth). That submission is misconceived. The Plaintiff does not seek to proceed against the Third Defendant. The matters are pleaded only to provide the basis for the claim under the guarantee against the Fourth Defendant.
Although there is no explanation for the fact that the Fourth Defendant has not pleaded these matters prior to this time, the absence of prejudice to the Plaintiff or other parties causes me to think that the Fourth Defendant should be permitted to raise these defences at this time.
Similarly because there will be no prejudice arising from the filing of the Fourth Further Amended Statement of Claim, in effect to answer the new pleadings in the Defence, that should also be permitted to be filed.
The one thing that has caused me concern is the paragraphs in the Fourth Defendant's Defence that amount to withdrawals of admissions. Mr Stitt has submitted that I should permit those paragraphs to remain because most or all of them deal with an issue which is a live issue in the proceedings; namely, whether the Third and the Fourth Defendants were together the agents of the borrowers or whether they were the agents of the bank. The issue of agency, it is said, has been raised by the First and Second Defendants in the proceedings.
Whilst that might be true, the effect of the Defence filed on 3 August 2012 was that there was no such issue as between the Third and Fourth Defendants, on the one hand, and the Plaintiff, on the other. It does not seem appropriate now to permit that to become such an issue between the Plaintiff and the Fourth Defendant. Particularly when there is no explanation provided for why the admissions were made in the Defence of 3 August 2012, nor in the evidence, to show that the admissions were wrongly made in the circumstances. If I were to permit that to be raised as an issue as between the Fourth Defendant and the Plaintiff, there is always the chance that it could cease to be an issue as between the Plaintiff and the other Defendants, and the proceedings would thereby be lengthened by that issue being maintained unnecessarily between the Fourth Defendant and the Plaintiff.
However, it is the lack of any explanation for the making of the admissions and why they were wrongly made that causes me to think they should not now be allowed to be withdrawn, particularly, at this late stage of the proceedings..
The result is that the Plaintiff will be given leave to file a Fourth Further Amended Statement of Claim in the form annexed to the affidavit of Vanessa Marie McGee dated 9 May 2014. Similarly the Fourth Defendant will be permitted to file a Defence to that Statement of Claim. The Defence may include paragraphs 1-3, 7 and 8, and 38-58 of the Defence filed 16 April 2014. It may also include any other paragraphs necessary to answer the amendments made in the Fourth Further Amended Statement of Claim to paragraphs 62A-82 of that proposed pleading. The Defence may not include the paragraphs in the Defence of 16 April 2014 that I have not specifically identified in these reasons. Those are the paragraphs that purport to withdraw the admissions already made in the prior Defence.
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Decision last updated: 22 May 2014
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