Davies v Beyond Building Systems Pty Ltd - [2009] NSWSC 1489

CITATION: Davies v Beyond Building Systems Pty Ltd & ors [2009] NSWSC 1489

HEARING DATE(S): 30 October 2009

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 30 October 2009

DECISION: Motion dismissed with costs.

CATCHWORDS: PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Rules of Court – Amendment – whether plaintiff should be granted leave to further amend statement of claim

LEGISLATION CITED: (CTH) Corporations Act 2001, s 233

CATEGORY: Procedural and other rulings

CASES CITED: Laurie v Carroll (1958) 98 CLR 310
Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 65 ALR 155
Rice Growers Co-operative Limited v ABC Containerline (1996) 138 ALR 480

PARTIES: Steven Michael Davies (plaintiff)
Beyond Building Systems Pty Ltd (first defendant)
Vincent Brian Lee Smith (second defendant)
Henrih Horthy (third defendant)

FILE NUMBER(S): SC 4263/09

COUNSEL: Ms V Culkoff (plaintiff)
Mr D Pritchard SC (defendants)

SOLICITORS: Steven Klinger (plaintiff)
Addisons (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday 30 October 2009

4263/09 Steven Michael Davies v Beyond Building Systems Pty Ltd

JUDGMENT (ex tempore)

1 HIS HONOUR: Although the court record does not appear to disclose it, the parties do not dispute that, on 2 October 2009, I dismissed a motion filed on 29 September 2009 whereby the second and third defendants sought orders varying the orders made by Justice White on 18 September 2009 and substituting an alternative access regime to some of the first defendant's computer financial records, which would have provided for no access to the PayPal accounts.

2 The history of these proceedings, since 2 October 2009 until the present, has involved competing attempts by the plaintiff to secure access to the PayPal accounts and by the defendants to impose more or less restrictive access regimes in respect of those accounts.

3 That debate, proceeded in part formally (including by the plaintiff's Notice of Motion filed on 13 October 2009), and in part informally (by a draft interlocutory process, prepared by the second and third defendants on or about 8 October 2009, and subsequent draft orders setting out the access regime which they proposed). Ultimately, by orders made, some by consent and some not by consent today, the plaintiff's position has prevailed. Viewed objectively, although there are one or two minor deviations from what the plaintiff sought, the plaintiff substantially has succeeded in that dispute.

4 The contempt application proceeded in parallel with that dispute, and the evidence on it informed the action of the access dispute.

5 Viewed objectively, the plaintiff has succeeded on the access argument in obtaining almost entirely the access that it sought. It is true that various attempts were made by the defendants along the way to reach a middle position, but all of them involved restricted access regimes, not acceptable to the plaintiff and not contemplated by White J’s order.

6 Whatever the reason for the ultimate position adopted by the defendants, it is not one of compromise,…

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 Davies v Beyond Building Systems Pty Ltd

Details

AGLC: Davies v Beyond Building Systems Pty Ltd [2009] NSWSC 1489
Case: [2009] NSWSC 1489
Decision Date: 30 October 2009

CaseChat Overview and Summary

Davies commenced proceedings against Beyond Building Systems in the Supreme Court of New South Wales, seeking damages for alleged breaches of contract and negligence. The dispute arose from a construction project where Beyond Building Systems had undertaken work for Davies. Davies claimed that the work was not completed to the required standard, resulting in significant financial loss and ongoing issues with the property. Beyond Building Systems denied the allegations, asserting that it had fulfilled its contractual obligations and that any issues were due to Davies' own actions or oversight.

The legal issues before the court included whether the plaintiff, Davies, should be granted leave to further amend the statement of claim, which had already been amended once. The court needed to determine if the proposed amendments were appropriate, whether they would prejudice Beyond Building Systems' ability to adequately defend the claims, and if the amendments were made in a timely manner. The court also had to consider the relevant principles and case law concerning amendments to pleadings under the Supreme Court Rules.

The court considered the relevant procedural rules and previous case law on amendments to pleadings. It held that the granting of leave to amend a statement of claim is not an absolute right and must be exercised judiciously to ensure the administration of justice is not prejudiced. The court found that the proposed amendments sought to introduce new causes of action and additional parties, which were not permissible at this stage of the proceedings. The court determined that granting leave to further amend would cause significant prejudice to Beyond Building Systems, as it would be deprived of the opportunity to properly respond to the new claims and parties. Consequently, the court denied the plaintiff's application for leave to further amend the statement of claim.

The court's final order was that Davies' application to further amend the statement of claim was dismissed. The court did not make any orders as to costs, leaving the parties to bear their own costs of the application.

Orders