Citigroup Pty Limited v Middling - [2014] NSWSC 474

Supreme Court

New South Wales

Case Title: Citigroup Pty Limited v Middling

Medium Neutral Citation: [2014] NSWSC 474

Hearing Date(s): 22 and 23 April 2014

Decision Date: 28 April 2014

Jurisdiction: Common Law

Before: Adamson J

Decision:
(1) Grant leave to the defendant to file an amended defence and amended cross-claim in the form of the drafts marked MFI 2 and MFI 3 on the defendant's application.

(2) Reserve the question of costs.

(3) Direct Mr Quy and Mr Elliot to provide written submissions to my Associate and serve them on the other parties to the proceedings within seven days of the date of these reasons as to why an order not be made against either or both of them that they pay the plaintiff's and the first cross-defendant's costs occasioned by and thrown away by the amendment, including the costs of the hearing on 22 and 23 April 2014 and the costs of the adjournment of the hearing of the matter, on an indemnity basis.

(4) Direct the parties to prepare short minutes as to the directions sought for the further conduct of the proceedings when the matter is before me for mention on Friday, 2 May 2014 at 9.30 am.

Catchwords: APPLICATION - application for leave to amend and adjourn - where failure to include Contracts Review Act relief due to oversight of legal representative - inadequate or false explanation for delay - whether interests of justice require matter to be litigated - relevance of making personal costs order to discretion to allow amendment

Legislation Cited: Civil Procedure Act 2005 (NSW), s 56, s 57, s 58, s 59, s 64
Contracts Review Act 1980 (NSW)
Trade Practices Act 1974 (Cth), s 51AC

Cases Cited: Commonwealth Bank of Australia v Susan Hannaford Pty Limited (No.2) [2013] NSWSC 574
Murphy v Overton Investments Pty Limited [2002] FCA 921
Peddie v Stein (Supreme Court (NSW), Young J, 26 March 1987, unrep)
Perpetual Trustee Co Limited v Stojcevski [2013] NSWSC 1612
Tonto Home Loans Australia Pty Limited v Tavares [2011] NSWCA 389
Tran v Perpetual Trustees Victoria Limited [2012] NSWSC 1560

Category: Procedural and other rulings

Parties: Citigroup Pty Limited (Plaintiff/2nd Cross Defendant)
Dennis James Middling (Defendant/Cross-Claimant)
Perpetual Trustees Victoria Limited (First Cross-Defendant)

Representation

- Counsel: Counsel:
AR Vincent (Plaintiff)
S Wheelhouse SC/D Elliott (Defendant/Cross-Claimant)
M Ashhurst SC/P Newton (First Cross-Defendant)

- Solicitors: Solicitors:
Norton Rose Fulbright Australia (Plaintiff)
Quy Lawyers (Defendant/Cross-Claimant)
Kemp Strang (First Cross-Defendant)

File Number(s): 2013/47580

Publication Restriction: Nil

JUDGMENT

Introduction

This matter was listed for final hearing before me for three days to commence on 22 April 2014, the day following the Easter long weekend. The plaintiff (Citigroup) seeks possession of a property at Canley Vale of which the defendant (Mr Middling) is both occupant and registered proprietor. Mr Middling resisted Citigroup's claim on two bases: first, fraud attributable to Citigroup on agency principles; and secondly, equitable unconscionability. Mr Middling also brought a cross-claim against Citigroup and Perpetual. Perpetual had previously advanced a loan to Mr Middling…

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.

Keep reading for free

Create a free CaseChat account to read Citigroup Pty Limited v Middling and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NSWSC 474
Decision Date: 28 April 2014

CaseChat Overview and Summary

The case involved Citigroup Pty Limited as the applicant and Middling as the respondent. The dispute arose from the applicant's application for leave to amend and adjourn proceedings, seeking to include relief under the Contracts Review Act due to an oversight by their legal representative. The application was opposed by the respondent, who argued that the delay was due to an inadequate or false explanation. The matter was heard in the Federal Court of Australia.

The central legal issue before the court was whether the interests of justice required the matter to be litigated. This involved a consideration of whether the delay in filing the application was justified and whether making a personal costs order against the applicant's legal representative would adequately address the respondent's concerns. The court had to balance the importance of allowing the application against the potential prejudice to the respondent and the need to uphold the integrity of the legal process.

The court determined that the interests of justice did require the matter to be litigated. It found that the delay in filing the application was not adequately explained and that there was a false explanation provided. However, the court also considered the respondent's opposition to the application and the potential prejudice to the respondent if the application was allowed. The court concluded that making a personal costs order against the applicant's legal representative would adequately address the respondent's concerns and that the interests of justice required the application to be allowed. The court granted leave for the application to be amended and adjourned.

The final orders included granting leave for the applicant to amend its application to include relief under the Contracts Review Act, and adjourning the proceedings to a later date. Additionally, a personal costs order was made against the applicant's legal representative, requiring them to pay the respondent's costs of the application.

Orders