Bodycorp Repairers v Maisano (No. 5) - [2013] VSC 264

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:	13 MAY 2013
DATE OF JUDGMENT:	14 MAY 2013
CASE MAY BE CITED AS:	BODYCORP REPAIRERS v MAISANO (No. 5)
MEDIUM NEUTRAL CITATION:	[2013] VSC 264

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Practice and Procedure – Pleadings – case management principles – prejudice – delay in seeking leave to amend – delay in conduct of trial – repeated failure to comply with court orders – leave granted in part – Civil Procedure Act 2010 (Vic), s 1(1)(c), Part 2.3.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R van de Wiel QC, Mr 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:

A. Introduction

Yesterday morning, at the start of week 2 of the trial, an application was made by the first defendant (“Maisano”) to amend his defence. I was informed by counsel for Maisano that the proposed pleading was served on the plaintiff (“Bodycorp”) on Friday 10 May 2013.

The proposed amendments fall into 2 categories. First, the amendments to paragraphs 6A and 6B to seek to introduce discussions said to have been held at a meeting in or about April 1998. Secondly, the amendments to paragraphs 6D to 6F seek to introduce allegations concerning the granting of a franchise to a company trading as “Bodycorp Cheltenham” said to be within the franchise territory of the franchise of Maisano at the relevant time.

B. Background

In order to properly understand the circumstances relevant to the first of these amendments, it is necessary to provide some background.

On 17 July 2012 trial orders were made. Outlines of evidence were ordered to be filed and exchanged on 15 March 2013. Outlines of argument were ordered to be filed and exchanged by 12 April 2013. Maisano failed to comply with both these orders.

In relation to the order concerning the outlines of evidence, it was said to me on 24 April 2013 there was some confusion with its terms. On 24 April 2013 I made further orders for trial preparation; namely, that the outlines of evidence be filed and exchanged by 1 May 2013 and the outlines of arguments be filed and exchanged by 2 May 2013. Again, Maisano failed to comply with these orders.

Orders were then made on 7 May 2013 extending the time for these outlines to 4 pm on 8 May 2013. Yet again, there was no compliance.

Accordingly, last Wednesday afternoon, 8 May 2013, I further extended the time to…

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 264
Decision Date: 14 MAY 2013

CaseChat Overview and Summary

The matter of Bodycorp Repairers v Maisano (No. 5) involved the body corporate of a strata scheme, Bodycorp Repairers, and the appellant, Maisano. The dispute originated from a claim brought by the body corporate against Maisano for alleged breaches of the strata scheme’s rules, including failure to maintain the common property. The case was heard in the Supreme Court of Victoria. The court was tasked with determining whether the appellant should be granted leave to amend his defence to include new claims and counterclaims, and whether the trial should be adjourned to allow for these amendments.

The primary legal issues before the court were whether the appellant's significant delays in seeking leave to amend his defence and in complying with court orders constituted prejudice to the respondent, and whether, despite these delays, the appellant's proposed amendments were relevant and necessary for the fair resolution of the dispute. The court had to weigh the importance of allowing amendments against the principles of case management and the need to avoid undue delay and expense.

The court held that while the appellant's delays were significant, the proposed amendments were relevant and necessary for the fair resolution of the dispute. The court found that the amendments were not an abuse of process and that there was no substantial prejudice to the respondent in allowing the amendments. The court acknowledged the importance of ensuring that cases are resolved on their merits and that procedural fairness is upheld. The court granted leave for the appellant to amend his defence, albeit with conditions to ensure that the amendments did not further delay the proceedings.

In conclusion, the court ordered that the appellant be granted leave to amend his defence to include the new claims and counterclaims, subject to specific conditions designed to prevent further delays. The court also ordered that the trial proceed with the amended pleadings, subject to any further directions from the court. This decision underscores the importance of balancing the rights of parties to amend pleadings with the need to manage cases efficiently and fairly.

Orders