Bodycorp Repairers v Maisano (No. 3) - [2013] VSC 244

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2005 09071

BODYCORP REPAIRERS PTY LTD (ACN 068 589 408)	Plaintiff
v
ANUNIZIATO ENZO MAISANO (also known as MICHAEL MAISANO and MICHAEL MASON) & ORS	Defendants

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 MAY 2013
DATE OF RULING:	8 MAY 2013
CASE MAY BE CITED AS:	BODYCORP REPAIRERS v MAISANO (No. 3)
MEDIUM NEUTRAL CITATION:	[2013] VSC 244

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Practice and Procedure – amendment of defence – withdrawal of admission – whether necessary to determine the real issues in controversy between the parties – whether prejudice to plaintiff – Civil Procedure Act 2010 (Vic), ss 7, 8 – Supreme Court (General Civil Procedure Rules) 2005 (Vic), r 36.01.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R van de Wiel QC, M Goldblatt and Mr D Yarrow	Frank Sanna
For the 1^st Defendant	Mr T Di Lallo	Oakley Thompson & Co
For the 4^th, 5^th and 6^th Defendants	Mr P Cawthorn SC and Mr P Crennan	Moray & Agnew
For the 7^th and 8^th Defendants	Mr T Messer	Kempsons

HIS HONOUR:

The 4th to 6th defendants (“the AAMI Defendants”) have made an oral application to be granted leave to file and serve a further amended defence.

The application was foreshadowed by senior counsel for the AAMI Defendants at the directions hearing last Thursday, 2 May 2013. I understand the proposed pleading was only served a short time before the directions hearing. Accordingly, I gave the plaintiff (“Bodycorp”) time to consider the draft before any argument on the leave application was heard. As a result the application was made yesterday, the first day of trial.

The proposed defence contains a number of admissions previously not made. There is no opposition to those amendments.

Leave was opposed in relation to a new paragraph 38B. By this proposed paragraph, and some consequential amendments, the AAMI Defendants seek to expressly deny that a business trading as "Bodycorp Heidelberg" was a franchisee of Bodycorp either under the AAMI agreement, as that term is defined in paragraph 30 of the defence, or at all.

The application is self-evidently very late. The current version of the statement of claim has been on foot since 18 September 2003. Further, the AAMI Defendants amended their defence, pursuant to leave granted by the court, on 20 September 2011.

The explanation given for the timing of the application was that, upon reviewing the documents in the court book for the purposes of preparing for trial, the issue became apparent to counsel.

As we can all appreciate this may happen from time to time in a case involving a large number of documents. In particular, this may occur in circumstances where the relevant facts are not within the knowledge of counsel's clients but are solely within the knowledge of the opposing party or parties. That is the case here. The AAMI Defendants’ principal means of…

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.

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Details

Case: [2013] VSC 244
Decision Date: 8 MAY 2013

CaseChat Overview and Summary

In Bodycorp Repairers v Maisano (No. 3), the dispute involved the Bodycorp, the owner of a commercial building, suing Maisano, a tenant, for damages resulting from fire damage caused by Maisano's negligence. The case was heard in the Supreme Court of Victoria. The primary legal issues revolved around the admissibility of amendments to the defence and the potential prejudice to the plaintiff if such amendments were allowed. Specifically, the court had to determine whether the amendments were necessary to resolve the real issues between the parties and whether permitting such amendments would prejudice the plaintiff.

The court examined the relevant provisions of the Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure Rules) 2005 (Vic). Under these statutes, the court has the discretion to allow amendments to pleadings if it is just to do so. The court considered whether the amendments would enable the determination of the real issues in controversy and whether the plaintiff would be prejudiced if the amendments were allowed. The court found that the proposed amendments were not necessary to resolve the core issues, and that allowing the amendments would result in significant prejudice to the plaintiff. Consequently, the court refused the application to amend the defence.

The final orders of the court were that the application to amend the defence was dismissed. The court held that the amendments would not contribute to the just resolution of the dispute and would unfairly prejudice the plaintiff. The court emphasised the importance of avoiding unnecessary amendments that could disrupt the proceedings and cause undue hardship to the opposing party.

Orders