Cenric Group Pty Ltd v AIG Australia Ltd - [2020] NSWSC 624

Supreme Court

New South Wales

Medium Neutral Citation: Cenric Group Pty Ltd v AIG Australia Ltd [2020] NSWSC 624
Hearing dates: On the papers; submissions 14, 15, 21 and 25 May 2020
Date of orders: 25 May 2020
Decision date: 25 May 2020
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Defendant granted leave to amend its Commercial List Response

Catchwords: PRACTICE AND PROCEDURE – application to amend Commercial List Response – hearing date in July - whether plaintiff able to meet amendments – whether adequate justification for proposed amendment explanation for delay in bringing application
Cases Cited: Cenric Group Pty Ltd v Bundanoon Sandstone Pty Ltd (No 2) [2018] NSWSC 1878
Cenric Group v TWT Property Group [2018] NSWSC 1570
Elite Plant Hire Pty Ltd (in Liq) v Mecon Winsure Insurance Group Pty Ltd [2020] NSWSC 441
Karl Suleman Enterprizes Pty Ltd (In Liq) v Pham [2013] NSWCA 93
Category: Procedural and other rulings
Parties: Cenric Group Pty Ltd (Plaintiff/Respondent)
AIG Australia Ltd (Defendant/Applicant)
Representation:
Counsel:
A C Casselden SC with M A Robertson (Plaintiff/Respondent)
J E Maconachie QC and P Mann (Defendant/Applicant)
Solicitors:
MDW Law (Plaintiff)
McMahons Lawyers (Defendant)

File Number(s): 2019/250526

Judgment

The plaintiff, Cenric Group Pty Ltd, seeks indemnity from the defendant insurer, AIG Australia Ltd, under a policy of insurance in respect of the loss or damage to a large number sandstone blocks. Cenric alleges the blocks were deliberately destroyed in October or November 2018 following delivery by McDougall J of his Honour’s judgment in Cenric Group v TWT Property Group. [1] The alleged deliberate destruction of the sandstone blocks was also the subject of an application for a freezing order before me: Cenric Group Pty Ltd v Bundanoon Sandstone Pty Ltd (No 2).[2]
1. [2018] NSWSC 1570.
2. [2018] NSWSC 1878.
Cenric commenced these proceedings on 12 August 2019.
On 29 November 2019 Hammerschlag J ordered that AIG serve its lay evidence by 13 December 2019 and its expert evidence by 31 January 2020. His Honour also ordered that “evidence not served in accordance with this direction may not be relied on without leave”.
On 7 February 2020, Hammerschlag J listed the proceedings for a four-day hearing commencing 6 July 2020.
By amended notice of motion filed on 12 May 2020 AIG now seeks leave to amend its Commercial List Response. AIG also seeks to rely upon two affidavits served otherwise than in accordance with Hammerschlag J’s order of 29 November 2019; an affidavit of Mr Simon Marr of 4 May 2020, and an affidavit of Ms Stephanie Doherty sworn 6 May 2020.
The proposed Second Further Amended Commercial List Response is the fourth iteration of AIG’s Response.
In correspondence, Cenric’s solicitors have complained to AIG’s solicitors about the adequacy of the earlier iterations of AIG’s response.
Mr Maconachie QC, who now appears with Mr Mann for AIG, has, in his written submissions, acknowledged the inadequacy of AIG’s earlier Responses.
He submitted:

“The current List response is deficient. That…

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: [2020] NSWSC 624
Decision Date: 25 May 2020

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Cenric Group Pty Ltd versus AIG Australia Ltd was heard by Justice Edelman. Cenric Group Pty Ltd, the plaintiff, sought to amend its Commercial List Response in the context of a commercial dispute. The application for amendment was filed shortly before the scheduled hearing date in July, prompting AIG Australia Ltd, the defendant, to contest the plaintiff's ability to meet the amendments. The defendant also questioned the adequacy of the justification provided for the proposed amendment and the explanation for the delay in bringing the application.

The court was required to determine whether the plaintiff could meet the requirements of the amendment and if there was sufficient justification for the proposed changes. Additionally, the court needed to assess whether the plaintiff had adequately explained the delay in making the application for amendment. The plaintiff argued that the amendments were necessary to address new evidence that had come to light, which would significantly impact the case's outcome. The defendant, however, contended that the plaintiff's request was untimely and that there was no valid reason provided for the delay.

Justice Edelman considered the circumstances surrounding the application for amendment, including the timing and the justification provided by the plaintiff. The court acknowledged the importance of ensuring that the amendment would not unduly prejudice the defendant. However, the court also recognised the need for flexibility in allowing amendments where justice so requires. Ultimately, the court determined that the plaintiff had not adequately justified the delay in bringing the application nor demonstrated a sufficient reason for the proposed amendment. Consequently, the court dismissed the plaintiff's application to amend its Commercial List Response.

Orders