Legal Research
Cases
Bye v Hend

Bye v Hend

Case [2025] ACTSC 94 20 March 2025

Appeal

Jurisdiction

Discovery & Disclosure

Res Judicata

Compensatory Damages

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Bye v Hend
Citation:	[2025] ACTSC 94
Hearing Date:	18 February 2025
Decision Date:	20 March 2025
Before:	McWilliam J
Decision:	Leave granted to plaintiff to withdraw admissions made in respect of a Notice to Admit Facts. Plaintiff to pay defendants’ costs.
Catchwords:	PRACTICE & PROCEDURE – application to withdraw admissions – where admissions deemed by omission to respond to Notice to Admit Facts – where delay but stage of proceeding permitted withdrawal without prejudice – application granted
Legislation Cited:	Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) rr 491, 492
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Carr v Needham [2019] ACTSC 98 Centrestate Exports Pty Ltd v Amarantos Shipping Co Ltd [2005] SASC 158 1․ Clough and Rogers v Frog (1974) 48 ALJR 481 Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 Cropper v Smith (1884) 26 Ch D 700 Drabsch v Switzerland General Insurance Co Ltd (unreported, Supreme Court of New South Wales, Santow J, 16 October 1996) Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309; 204 ALR 327 Le Meilleur Pty Ltd v Jin Heung Mutual Savings Bank Co Ltd [2011] NSWSC 1115; 256 FLR 240 Maile v Rafiq [2005] NSWCA 410 Re Rocco Celestino v Antonio Celestino (unreported, Federal Court of Australia Full Court, Spender, Miles and Von Doussa JJ, 16 August 1990) Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292; [2001] 2 Qd R 455 Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a firm) [2016] FCAFC 2; 332 ALR 199 Wyer v Hunt [2005] ACTSC 15
Parties:	Jennifer May Therese Bye ( Plaintiff) Steven John Hend (First Defendant) Homes Gallery Pty Limited T/AS L J Hooker Belconnen (Second Defendant)
Representation:	Counsel P Diaz ( Plaintiff) J Moffett ( First Defendant) A Costin ( Second Defendant)
Solicitors Hampton Law Services ( Plaintiff) Mills Oakley ( First Defendant) HBA Legal ( Second Defendant)
File Number:	SC 246 of 2023

McWILLIAM J:

1․The plaintiff in this proceeding, Ms Jennifer Bye, is in a dispute with her former landlord and agent. She alleges that she suffered a personal injury as a result of suffering an electric shock from a faulty light switch which she alleges she told them about but was not repaired in a timely or effective manner.
2․Proceedings were commenced in this court in July 2022. As part of the preparation of the matter for hearing, the defendants served the plaintiff with a Notice to Admit Facts on 15 February 2024 (Notice), pursuant to r 491 of the Court Procedures Rules 2006 (ACT) (Rules).
3․For reasons outlined below, the Notice was not answered and pursuant to r 492 of the Rules, the facts alleged in the Notice are now deemed to have been admitted.

Application to withdraw admissions

4․By application dated 28 November 2024 (filed 2…

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 Bye v Hend

Details

AGLC: Bye v Hend [2025] ACTSC 94
Case: [2025] ACTSC 94
Decision Date

CaseChat Overview and Summary

The plaintiff, Ms Jennifer Bye, brought an action against her former landlord and agent, alleging personal injury from an electric shock caused by a faulty light switch. The defendants served a Notice to Admit Facts on 15 February 2024, under r 491 of the Court Procedures Rules 2006 (ACT). The plaintiff failed to respond, leading to the facts in the Notice being deemed admitted. The plaintiff subsequently sought leave to withdraw these admissions, an application opposed by the defendants.

The court had to determine whether the plaintiff should be permitted to withdraw the deemed admissions, and if so, under what circumstances and conditions. The guiding principles for withdrawing admissions, whether express or deemed, are well established and focus on ensuring a fair trial and efficient use of judicial resources. The court's discretion in deciding whether to permit the withdrawal of an admission is broad and unfettered, with the overriding question being what is in the interests of justice.

The plaintiff argued that the deemed admissions were not deliberate and resulted from a procedural mistake by her former solicitors and a delay by her current solicitors. The admissions related directly to matters relevant to the defendants' liability and the extent of any damages. The court found that the admissions were made by inadvertence and, if not corrected, would not lead to a decision on the real matters in controversy. The court considered the stage of the proceeding, the reliance of the defendants on the deemed admissions, and the potential for injustice to the defendants if the admissions were withdrawn. The court concluded that the defendants would not suffer permanent prejudice but would merely need to adjust their preparation for the hearing.

The court granted leave for the plaintiff to withdraw the deemed admissions, emphasizing the importance of correcting procedural mistakes that do not lead to a decision on the real matters in controversy. The court ordered a timetable to prepare the matter for hearing and directed that the plaintiff pay the defendants' costs of the application, reflecting the compensatory nature of costs where the defendants had complied with the Rules.

In summary, the court granted the plaintiff's application to withdraw the deemed admissions, highlighting the need to ensure a fair trial and the efficient use of judicial resources while considering the interests of justice and the potential for prejudice to the opposing party.

Orders