Corporate Documentation Management Pty Ltd v Kathy Bagshaw - [2021] NSWSC 1719

Supreme Court

New South Wales

Medium Neutral Citation: Corporate Documentation Management Pty Ltd v Kathy Bagshaw [2021] NSWSC 1719
Hearing dates: 17 September 2021
Date of orders: 19 October 2021
Decision date: 19 October 2021
Jurisdiction: Equity
Before: Rein J
Decision:
See [49]

Catchwords:
CIVIL PROCEDURE — Pleadings — Amendment – where the Plaintiff sought to amend its Statement of Claim, which application was opposed by the Defendant who asserted the proposed Amended Statement of Claim (“ASTOCL”) was embarrassing, inadequately particularised, and that its filing would be in breach of an agreement reached between the parties in respect of a joint expert – where the Defendant identified a discrepancy between the amount of the loss and damaged claimed and the total figures claimed in the earlier part of the pleading – where the Defendant claimed filing the ASTOCL would be in breach of an agreement in relation to the retainer of the joint expert, which report focused on the Plaintiff’s ten main vendors (“the Ten Vendors”) and did not include the any other vendors (“the Secondary Vendors”). The breach asserted was that it was agreed the expert would examine all transactions, not just the Ten Vendors, however the parties provided to the expert an Index of Documents relating to only the Ten Vendors – Held: the pleadings were not in a defective form, save for the discrepancy issue, and the Defendant could not have any difficulty in understanding what is alleged against her – leave granted to the Plaintiff to file an ASTOCL, however, noting the discrepancy issue, not in the form proposed. The Plaintiff to provide an explanation as to the discrepancy identified by the Defendant and, if need be, amend the ASTOCL to ensure there is no disconformity between the total of the amount claimed in later paragraphs and the amounts claimed in earlier paragraphs – Held: it is not appropriate to determine on this application whether there was a breach of the agreement by the Plaintiff or to preclude the Plaintiff from filing an ASTOCL because the expert report has not examined all of the secondary vendors.

Legislation Cited:
Civil Procedure Act 2005 (NSW)

Cases Cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd [2021] NSWSC 961
Johnson v Miller (1937) 59 CLR 467
Kelly v Mina [2014] NSWCA 9
McGuirk v University of NSW [2009] NSWSC 1424
Meckiff v Simpson [1968] VR 62
Northam v Favelle Favco Holdings Pty Ltd (Supreme Court (NSW), Bryson J, 7 March 1995, unrep)
R v Walsh (2002) 131 A Crim R 299

Texts Cited:
Nil

Category: Principal judgment
Parties: Corporate Documentation Management Pty Ltd (Plaintiff)
Kathy Bagshaw (Defendant)
Representation:
Counsel:
Mr D Studdy SC (Plaintiff)
Mr R Lovas (Defendant)
Solicitors:
Bartier Perry Lawyers (Plaintiff)
Livingstone & Company Lawyers (Defendant)

File Number(s): 2018/346848
Publication restriction: Nil

Judgment

The Court has before it an application by the…

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: [2021] NSWSC 1719
Decision Date: 19 October 2021

CaseChat Overview and Summary

The case of Corporate Documentation Management Pty Ltd v Kathy Bagshaw involved the plaintiff, Corporate Documentation Management Pty Ltd, seeking to amend its Statement of Claim against the defendant, Kathy Bagshaw. The dispute centred around the plaintiff's application to amend its Statement of Claim, which was opposed by the defendant. The defendant argued that the proposed Amended Statement of Claim was embarrassing, inadequately particularised, and that its filing would breach an agreement reached between the parties regarding the retainer of a joint expert. The defendant also identified a discrepancy between the amount of loss and damage claimed and the total figures stated in the plaintiff's earlier pleadings. Furthermore, the defendant argued that the filing of the Amended Statement of Claim would breach an agreement concerning the expert's examination of all transactions, not just the plaintiff's ten main vendors.

The court was required to decide whether the proposed Amended Statement of Claim was sufficiently particularised and whether there was a breach of the agreement between the parties regarding the retainer of the joint expert. The court also needed to address the discrepancy identified by the defendant between the amount of loss and damage claimed and the total figures stated in the earlier pleadings. The court had to determine if it was appropriate to decide on the breach of the agreement and preclude the plaintiff from filing an Amended Statement of Claim based on the expert's report not examining all of the secondary vendors.

The court held that the pleadings were not in a defective form, except for the discrepancy issue. The court found that the defendant could not have any difficulty in understanding what was alleged against her. The court granted leave to the plaintiff to file an Amended Statement of Claim, but not in the form proposed. The court required the plaintiff to provide an explanation regarding the discrepancy identified by the defendant and, if necessary, amend the Amended Statement of Claim to ensure there was no inconsistency between the total amount claimed in later paragraphs and the amounts claimed in earlier paragraphs. The court held that it was not appropriate to determine on this application whether there was a breach of the agreement by the plaintiff or to preclude the plaintiff from filing an Amended Statement of Claim because the expert report had not examined all of the secondary vendors.

The court's final orders were that leave was granted to the plaintiff to file an Amended Statement of Claim, but not in the form proposed. The plaintiff was required to provide an explanation regarding the discrepancy identified by the defendant and, if necessary, amend the Amended Statement of Claim to ensure there was no inconsistency between the total amount claimed in later paragraphs and the amounts claimed in earlier paragraphs. The court did not determine whether there was a breach of the agreement by the plaintiff or preclude the plaintiff from filing an Amended Statement of Claim because the expert report had not examined all of the secondary vendors.

Orders