Davis v Greenedge Visions Pty Ltd ATF the Stellar Family Trust trading as Resicert

[2015] NSWDC 334

District Court

New South Wales

Medium Neutral Citation:	Davis v Greenedge Visions Pty Ltd ATF The Stellar Family Trust trading as Resicert [2015] NSWDC 334
Hearing dates:	17 December 2015
Date of orders:	17 December 2015
Decision date:	17 December 2015
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Note that the further amended statement of claim is the fifth version of the plaintiffs’ claim to have been filed. (2)   Grant leave to the plaintiffs to file the further amended statement of claim by 11 January 2016 on terms that: (a)   the term “and/or” wherever occurring in the proposed pleading in respect of Mr Antonelli’s authority be replaced with “and” or “or” or some other form of words so as to indicate the basis of the liability of the proposed first defendant for the representations of Mr Antonelli; and (b)   the defendant have leave to seek further particulars concerning the authority or agency of Mr Antonelli to make representations on behalf of the proposed first defendant. (3)   The plaintiffs pay the costs of the defendant thrown away by reason of the amendment save for the costs of the notice of motion. (4)   The defendant’s costs of the notice of motion be the defendant’s costs in the proceedings. (5)   In the absence of Mr Antonelli having completed the service of his evidence by 4 March 2016, that the parties have liberty to apply for a further direction about evidence. (6)   The plaintiffs to serve a copy of these orders on Mr Antonelli on the occasion of service of the further amended statement of claim on Mr Antonelli. (7)   In the absence of the plaintiffs being excused by Mr Antonelli, that the plaintiffs by the 22 January 2016 serve Mr Antonelli with a copy of the current defence, any filed request or provision of particulars and a copy of the evidence served by the plaintiffs. (8)   I confirm that the matter is listed for directions on 19 May 2016 at 2pm before the Judicial Registrar.
Catchwords:	PROCEDURE – parties – joinder – amendment of pleadings
Legislation Cited:	Civil Procedure Act 2005, s 56 Uniform Civil Procedure Rules 2005, r 14.6, r 42.1, r 42.7
Category:	Procedural and other rulings
Parties:	Mark Brian Davis (first plaintiff) Michael Raco (second plaintiff) Robert Pintabona (third plaintiff) Jack Lee (fourth plaintiff) Greenedge Visions Pty Ltd (ACN 101 869 584) ATF The Stellar Family Trust (ABN 46 768 330 252) trading as Resicert (defendant)
Representation:	Counsel: Mr D Moujalli (plaintiffs) Mr C J Peadon (defendant)   Solicitors: Brander Smith McKnight (plaintiffs) Clyde & Co (defendant)
File Number(s):	2014/268269
Publication restriction:	None

Judgment

1. The plaintiffs apply to join Paul Antonelli as a defendant and make amendments to the statement of claim. The defendant but not Mr Antonelli appeared and was represented, opposing the application.

2. The existing claim against the defendant, Greenedge Visions Pty Ltd ATF The Stellar Family Trust trading as Resicert, alleges a number of misrepresentations. Sometimes those misrepresentations are alleged to be by Mr Antonelli, and sometimes the representations are alleged to be by "the defendant". The proposed amended pleadings seek to replace in a number of instances "Mr Antonelli", "Antonelli" or "the defendant" with the words "Antonelli and the First Defendant by its officer and/or agent Antonelli".

3. The amendment is opposed on the grounds that the explanation for the delay in the amendment is inadequate, and that the pleading remains defective in its present form.

4. The matter's history is not short. Although this proposed amendment is titled the "Further Amended Statement of Claim", if leave is granted it would be the fifth filed version of the statement of claim. That arises from the circumstance that the three previous filed versions of the statement of claim were all titled the "Amended Statement of Claim". It was submitted that some of those early amendments were confined to particular narrow issues or were in the nature of housekeeping amendments.    I should note that the plaintiffs’ evidence has been filed. The defendant's evidence is due to be filed by 4 March 2016, and the matter is set down for hearing on 25 July 2016.

ADEQUACY OF EXPLANATION

5. The plaintiffs filed on 4 December 2015 a short affidavit by "a solicitor employed by the legal representative of the Plaintiffs", Mr Evan Li. Mr Li relevantly states at paragraph 5:

"During the course of preparing the Plaintiffs’ evidence, it has become clear that the various representations which are alleged to have been made by the First Defendant were also made by Mr Paul Antonelli."

It is, however, apparent that Mr Antonelli's statements were always the foundation of the representations alleged to have been made by the first defendant. Most or all of the representations of the first defendant were voiced by Mr Antonelli.

6. Other than the passage noted above, no explanation is given as to why Mr Antonelli was not joined to the proceedings earlier. The explanation given is brief and does not fully disclose all the thinking that led to the proposed joinder of Mr Antonelli. Nevertheless, in the absence of cross‑examination of Mr Li or other evidence, I conclude, on the balance of probabilities, that there was some oversight by the plaintiffs. As the hearing date is more than seven months away, I do not think that that oversight should preclude the amendment, or the joinder of Mr Antonelli.

DEFECTIVE PLEADING

7. The second basis of objection to the amendment is that the pleading, in several instances, includes in the one paragraph allegations of several facts contrary to r 14.6(b) of the Uniform Civil Procedure Rules 2005, where:

“14.6 Pleadings to be divided into paragraphs

(cf SCR Part 15, rule 6; DCR Part 9, rule 2)

If a pleading alleges or otherwise deals with several matters:

…

(b) each matter must, so far as convenient, be put in a separate paragraph…”

There is a real question as to the ambit of the term "matter" in this rule. And it would probably be impossible to ensure that each paragraph only included one fact. However, there are instances where the pleading would be made clearer if some of the allegations in a paragraph were separated into several paragraphs.

8. On the other hand, criticism of the existing pleading does not seem to me to be a reason why the relatively brief amendment of adding the words "Antonelli and the First Defendant by its officer and/or agent Antonelli" or similar words, should be refused. To refuse leave would not cure the defect complained of.

9. I am concerned with the use of the composite word "and/or" which does not reveal precisely the basis of the claim that the defendant is liable for the representations of Mr Antonelli. Paragraphs 41 and 45 of the existing statement of claim also leave the basis of the defendant’s liability unclear. Until it is clear that the liability of the defendant for Mr Antonelli's representations is not genuinely an issue, the plaintiffs should make clear the precise basis on which the defendant is responsible for, or is taken to have made, the representations voiced by Mr Antonelli. A grant of leave should be on terms that the words "and/or" be clarified by the plaintiffs, identifying whether the conjunctive or the disjunctive or some other form of words is intended, and also that the defendant have leave to seek particulars about the authority or agency of Mr Antonelli to make representations on behalf of the defendant.

10. Given the overriding purpose set out in s 56 of the Civil Procedure Act 2005, that the Court exercise its discretion in the rules to achieve a quick, just and cheap resolution of the real issues in the dispute, I propose to allow the amendment. It serves no useful purpose to require the plaintiffs to commence separate proceedings against Mr Antonelli, proceedings which would inevitably be ultimately joined to or heard with the current proceedings. I take this view bearing in mind that it is unlikely that the joinder of Mr Antonelli will prejudice the existing hearing date of 25 July 2016.

COSTS

11. As to the question of costs, I take into account rr 42.1 and 42.7 of the Uniform Civil Procedure Rules 2005, which provide respectively that costs should follow the event, and that in the absence of another order, the costs of an interlocutory application should be costs in the proceedings. The determination of when interlocutory orders should give rise to a separate entitlement for costs unrelated to the ultimate result of the proceedings is not always easy to determine.

12. Ordinarily the plaintiffs should bear the costs thrown away by reason of the amendment. As to the costs of the notice of motion, although the plaintiffs have been successful in obtaining leave to amend and join Mr Antonelli, there are problems with the way the plaintiffs have pleaded the amendments. Conditions on the grant of leave are needed to deal with them.

13. If the plaintiffs are successful in the proceedings, the plaintiffs should not, in my view, bear the defendant’s costs of unsuccessfully resisting the notice of motion.

14. Accordingly, I propose to order that the defendant’s costs of the notice of motion be the defendant’s costs in the proceedings.

ORDERS

15. The orders and notations of the Court are therefore as follows:

1. Note that the further amended statement of claim is the fifth version of the plaintiffs’ claim to have been filed.

2. Grant leave to the plaintiffs to file the further amended statement of claim by 11 January 2016 on terms that:

1. the term “and/or” wherever occurring in the proposed pleading in respect of Mr Antonelli’s authority be replaced with “and” or “or” or some other form of words so as to indicate the basis of the liability of the proposed first defendant for the representations of Mr Antonelli; and

2. the defendant have leave to seek further particulars concerning the authority or agency of Mr Antonelli to make representations on behalf of the proposed first defendant.

3. The plaintiffs pay the costs of the defendant thrown away by reason of the amendment save for the costs of the notice of motion.

4. The defendant’s costs of the notice of motion be the defendant’s costs in the proceedings.

5. In the absence of Mr Antonelli having completed the service of his evidence by 4 March 2016, that the parties have liberty to apply for a further direction about evidence.

6. The plaintiffs to serve a copy of these orders on Mr Antonelli on the occasion of service of the further amended statement of claim on Mr Antonelli.

7. In the absence of the plaintiffs being excused by Mr Antonelli, that the plaintiffs by the 22 January 2016 serve Mr Antonelli with a copy of the current defence, any filed request or provision of particulars and a copy of the evidence served by the plaintiffs.

8. I confirm that the matter is listed for directions on 19 May 2016 at 2pm before the Judicial Registrar.

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Decision last updated: 21 January 2016