Booth v Cerreto (No 2) - [2021] NSWSC 1100

Supreme Court

New South Wales

Medium Neutral Citation: Booth v Cerreto (No 2) [2021] NSWSC 1100
Hearing dates: 3 August 2021
Date of orders: 31 August 2021
Decision date: 31 August 2021
Jurisdiction: Equity
Before: Henry J
Decision:
See [76]

Catchwords:
CIVIL PROCEDURE – Pleadings – Amendment – where defendants conceded certain relief and parties agreed for judicial sale order on basis of original pleading and agreed facts – where proposed amendments include new cause of action and claim rescission and order for transfer of property – no issue of principle – leave to amend those matters refused

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64
Uniform Civil Procedure Rules 2005 (NSW), rr 31.46, 31.51

Cases Cited:
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Booth v Cerreto & Ors [2017] NSWSC 468
Karl Suleman Enterprizes Pty Ltd (in liq) v Pham [2013] NSWCA 93
New Beach Apartments Pty Ltd v Epic Hotels Pty Ltd [2007] NSWSC 474
Sood v Christianos [2008] NSWSC 1087

Texts Cited:
G P Stuckey and C D Irwin, Parker’s Practice in equity (New South Wales) (2nd ed, 1949, Law Book Co)

Category: Procedural rulings
Parties: Millie Booth (First Plaintiff)
Grant William Booth (Second Plaintiff)
Maria Immaculata Dominello (deceased) (Third Plaintiff)
Norm Cerreto (First Defendant)
Antonio Salerno (Second Defendant)
Arthur Street Facility Management Pty Ltd (Third Defendant)
Arthur St Build Group Pty Ltd (Fourth Defendant)
Australia and New Zealand Banking Group Ltd (Fifth Defendant)
Westpac Banking Corporation (Sixth Defendant)
Representation:
Counsel:
N Kidd SC with J Darvall (Plaintiffs)
C Carroll (First to Fourth Defendants)
Solicitors:
Mercuri Lawyers (Plaintiffs)
AJL Legal (First to Fourth Defendants)

File Number(s): 2016/109465
Publication restriction: Nil

Judgment

These proceedings were commenced by statement of claim filed on 11 April 2016. They arise out of an oral joint venture agreement entered into by the plaintiffs and the first and second defendants on 16 September 2011 (JV Agreement) for the purpose of developing two parcels of land known as 8 and 10 Arthur St in Ryde, NSW (together, the Properties).
By their notice of motion filed on 28 May 2021, the plaintiffs seek leave to file an amended statement of claim (ASOC) to plead, among other things, a new cause of action based on allegations of false representations, new alleged breaches of the JV Agreement and fiduciary duties by the first and second defendants, and new claims for relief.
Some of the amendments are opposed and others are not. The defendants’ opposition is primarily for reasons of delay in the context where the proceedings were ready for a final hearing in June 2019, an expert was appointed and has reported on the parties’ respective contributions to the joint venture, and the parties had agreed that an order for judicial sale would be made following the expert report.

The parties, the claims and procedural history

The third plaintiff, who is now deceased, was the registered proprietor 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.

Continue reading Booth v Cerreto (No 2)

Details

AGLC: Booth v Cerreto (No 2) [2021] NSWSC 1100
Case: [2021] NSWSC 1100
Decision Date: 31 August 2021

CaseChat Overview and Summary

In this matter, Booth and Cerreto came before the court, with the primary dispute centering around the interpretation and enforcement of a contract, specifically a joint venture agreement. The court was required to determine whether the plaintiffs were entitled to amendments in their pleadings that would introduce new causes of action and seek rescission of the agreement, as well as an order for the transfer of property. The defendants had already conceded certain reliefs, and the parties had agreed to a judicial sale order based on the original pleadings and agreed facts.

The central legal issue was whether the court should allow the plaintiffs to amend their pleadings to include new causes of action and claims for rescission and the transfer of property. The court was tasked with assessing whether these proposed amendments were permissible under the circumstances and whether they would significantly prejudice the defendants. The court also considered whether the proposed amendments would address the fundamental issues in the case and whether they were necessary to achieve justice between the parties.

The court found that while there was no issue of principle regarding the refusal of leave to amend, the proposed amendments would introduce new claims that were not contemplated in the original pleadings. The court was concerned that allowing such amendments could significantly prejudice the defendants, who had already conceded certain reliefs and were prepared to proceed on the basis of the original pleadings and agreed facts. The court held that the proposed amendments were not necessary to achieve justice between the parties, given the concessions already made by the defendants and the agreed judicial sale order. Therefore, the court refused the plaintiffs leave to amend their pleadings.

The final orders of the court were that the plaintiffs were not granted leave to amend their pleadings to include new causes of action and claims for rescission and the transfer of property. The court maintained the agreed judicial sale order and the concessions made by the defendants, with the understanding that these would be enforced according to the terms of the original pleadings and agreed facts. The court emphasised the importance of adhering to the agreed judicial sale order and the need for the parties to proceed with the sale as previously determined.

Orders