Borgese v Cater & Blumer Pty Ltd t/as Cater & Blumer (No 2) - [2017] NSWSC 79

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Borgese v Cater & Blumer Pty Ltd t/as Cater & Blumer (No 2) [2017] NSWSC 79
Hearing dates: 13 February 2017
Decision date: 15 February 2017
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) Leave for the plaintiff to file a further amended statement of claim is refused.
(2) The plaintiff is to pay the defendant’s costs of this motion.

Catchwords: PRACTICE AND PROCEDURE - application for leave to file further amended statement of claim on first day of trial – significant changes to plaintiff’s case – considerable delay already occasioned – case management principles – assessment of strength of the plaintiff’s case – prejudice to the parties – leave refused
Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58, 64
Conveyencing Act 1919 (NSW), s 54A
Court Procedures Rules 2006 (ACT)
Family Provision Act 1982 (NSW)
Practice Note SC CL 7, Professional Negligence List
Uniform Civil Procedure Rules 2005 (NSW), rr 12.7(1), 13.4(1)(b)
Cases Cited: Aon Risk Services Australia Ltd v The Australian National University (2009) 239 CLR 175; [2009] HCA 27
Birmingham v Renfrew (1937) 57 CLR 666
Borgese v Cater & Blumer Pty Ltd t/as Cater & Blumer [2016] NSWSC 1252
Borgese v Papasidero [2006] NSWSC 407
Crossman v Sheahan [2016] NSWCA 200
DJZ Constructions Pty Ltd v Paul Pritchard t/as Pritchard Law Group (No 2) [2009] NSWSC 215
Hans Pet Construction Pty Limited v Cassar [2009] NSWCA 230
Hendricks v McGeoch [2008] NSWCA 53
Horton v Jones (1935) 53 CLR 475; [1935] HCA 7
Horton v Jones (No 2) (1939) 39 SR (NSW) 305; (1939) 56 WN (NSW) 161
Johnson v Buttress (1936) 56 CLR 113
Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181
Maguire v Makaronis (1997) 188 CLR 449
Maxwell-Smith v S & E Hall Pty Ltd [2014] NSWCA 146
Polon v Dorian [2014] NSWSC 571
Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501; [2001] VSCA 248
Category: Procedural and other rulings
Parties: Domenico Borgese (Plaintiff)
Cater & Blumer Pty Ltd t/as Cater & Blumer Solicitors (Incorporating Ian Denis Maguire t/as Maguire & Martin Solicitors) (Defendant)
Representation:
Counsel:
Ms J Merkel (Plaintiff)
Mr T Faulkner SC (Defendant)
Solicitors:
Margiotta Solicitors & Attorneys (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s): 2012/138861

Judgment

Domenico Borgese (“the plaintiff”) was born into a family of orchardists. His parents Carmelo and Giuseppe Borgese and his five sisters all lived on the family farm outside Leeton and his parents also owned and worked a smaller farm nearby. The plaintiff left school at an early age and worked on the farms. In 1976, when the plaintiff was twenty years old, he signed a deed of partnership formalising this arrangement. His parents signed their wills on the same day. All three documents were prepared and witnessed by Mr Ian Maguire, a solicitor at the law firm of Maguire & Martin Solicitors in Leeton. That practice was incorporated into the practice 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: [2017] NSWSC 79
Decision Date: 15 February 2017

CaseChat Overview and Summary

In Borgese v Cater & Blumer Pty Ltd t/as Cater & Blumer (No 2), the plaintiff sought leave to file a further amended statement of claim on the first day of trial. The dispute involved significant changes to the plaintiff's case, including the introduction of new causes of action and parties. The application arose in the context of considerable delay that had already occurred in the proceedings. The court had to decide whether to grant leave for the further amended statement of claim under the principles of case management, and if doing so would be just and convenient in all the circumstances.

The court was required to balance the plaintiff's right to amend the pleadings against the principles of case management, which seek to ensure that cases are resolved in a timely and efficient manner. The key issues included the extent of the delay, the impact on the opposing party, and the overall strength of the plaintiff's case. The court considered the prejudice to the defendant if leave were granted, as well as the potential for further delay if the plaintiff were allowed to amend the pleadings on the first day of trial. The court found that the plaintiff's case had not demonstrated sufficient strength to warrant the grant of leave, and that the defendant would suffer undue prejudice if the application were successful.

The court refused the plaintiff's application for leave to file a further amended statement of claim on the first day of trial. The court held that the application had not been made within a reasonable time, and that the proposed amendments were significant and would cause substantial prejudice to the defendant. The court emphasised the importance of adhering to case management principles and the need to prevent unnecessary delays in litigation. The court concluded that the application should be dismissed, and the plaintiff's case would proceed with the existing pleadings.

Orders