Commonwealth Bank of Australia v Jason Hamilton; Commonwealth Bank of Australia v Karen Hamilton

[2010] NSWSC 1138

CITATION:	Commonwealth Bank of Australia v Jason Hamilton; Commonwealth Bank of Australia v Karen Hamilton [2010] NSWSC 1138
HEARING DATE(S):	28/09/10
JUDGMENT DATE :	28 September 2010
JUDGMENT OF:	Price J at 1
EX TEMPORE JUDGMENT DATE:	28 September 2010
DECISION:	1. Disallow par 11 of defence to amended cross-claim. 2. Pars 12 and 13 of defence to amended cross-claim permitted. 3. Defence to amended cross-claim filed.
CATCHWORDS:	PROCEDURE - civil - pleadings - whether leave to file defence to amended cross-claim - allegation of forgery - whether substantial prejudice caused by pleadings - dictates of justice - paragraph disallowed - leave to file defence granted
LEGISLATION CITED:	Civil Procedure Act 2005 s 58, s 58(2)
CATEGORY:	Procedural and other rulings
PARTIES:	Commonwealth Bank of Australia Jason Hamilton Karen Hamilton Peter Webb Lawcover Insurance Pty Limited
FILE NUMBER(S):	SC 2007/263396; 2007/263397
COUNSEL:	Mr DA Smallbone and Ms LJ Freiwald Mr K Ginges Mr D Lloyd Mr SR Donaldson SC and Mr G Ng
SOLICITORS:	Gadens Lawyers (Commonwealth Bank of Australia) A. Luong & Associates (Jason Hamilton, Karen Hamilton) TressCox Lawyers (Peter Webb) Yeldham Price O'Brien Lusk (Lawcover Insurance Pty Limited)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

28 September 2010


2007/263396 - Commonwealth Bank of Australia v
Jason Hamilton

JUDGMENT

1 HIS HONOUR: Mr Webb, the second cross-defendant, seeks leave to file a defence to an amended cross-claim. On 27 September 2010 I granted leave to Mrs Karen Hamilton to file an amended statement of cross-claim. Mr Ginges, who appears on behalf of Mrs Hamilton, objects to a number of the paragraphs which are pleaded in the defence to amended cross-claim.

2 The principal focus of Mr Ginges' complaint is par 11. What is said by Mr Ginges in opposition to the proposed pleading in par 11 is that it raises serious allegations of forgery in respect of Mr Hamilton, who is the first defendant and also a cross-claimant. Mr Hamilton is Karen Hamilton's husband.

3 The argument is that not only does substantial prejudice arise against Mrs Hamilton if the proposed pleading is allowed, but also that the assertion of forgery which is contained in particulars (d) and (e) to par 11 is without foundation.

4 Mr Lloyd, in response, has contended that what is pleaded in par 11 arises from par 8(g) of the amended statement of cross-claim.

5 I might add that the amendments made to the cross-claim yesterday were

in relation to the first cross-defendant who has not appeared in these proceedings.

6 It is apparent from a reading of the affidavit of Karen Hamilton, sworn 10 June 2009, that the documents which are identified in par 8(g) of the amended statement of cross-claim are identified by Mrs Hamilton in pars 15, 16 and 21 of her affidavit. I do not agree with Mr Lloyd's contention that a close reading of that affidavit was required to discern precisely what were the documents identified by Mrs Hamilton as being forgeries.

7 Section 58 Civil Procedure Act 2005 requires the court to act in accordance with the dictates of justice. I have regard, in considering the application, to those matters specified in s 58(2) so far as are relevant to the present consideration.

8 I have little doubt that if leave to file the proposed amended par 11 was granted that substantial prejudice would flow to Mr and Mrs Hamilton. They would require separate legal representation because of the serious assertion of forgery .

9 So far as I am presently aware of the evidence it seems to me that what is asserted on behalf of the second cross-defendant as to Mr Hamilton's involvement in forgery requires a logical leap and does not flow as a matter of easy inference from what is said to be the evidence.

10 In any event, the most important consideration is that the information which is particularised in par 8(g) of the amended statement of cross-claim was available to the second cross-defendant from the time that Mrs Hamilton's affidavit was served. Her affidavit, as I have stated, was dated 10 June 2009.

11 We are now in the second day of a hearing. It was open to the second cross-defendant to make an application prior to the commencement of the hearing to amend his pleadings. He did not do so. In my view, the dictates of justice oblige me, on balance, to disallow the proposed par 11 in its entirety in the defence to amended cross-claim.

12 There are objections to pars 12 and 13 of the proposed defence to amended cross-claim. In my opinion, the arguments advanced by Mr Ginges really go to a question of the viability of what is asserted and not to any question of real prejudice so far as his client is concerned.

13 In my view, the dictates of justice require that pars 12 and 13 of the defence to amended cross-claim be permitted. I propose to allow that document to be filed with the exclusion of par 11.

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