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De Kauwe v Cohen

De Kauwe v Cohen

Case [2021] WASC 25 8 February 2021

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   DE KAUWE -v- COHEN [2021] WASC 25
CORAM:   LE MIERE J
HEARD:   3 FEBRUARY 2021
DELIVERED          :   8 FEBRUARY 2021
FILE NO/S:   CIV 1512 of 2018
BETWEEN:   BRENDAN JAMES DE KAUWE
Plaintiff

AND

HAIM COHEN
First Defendant

ILAN SAAD
Second Defendant

GALIT ASSAF SHENHAR
Third Defendant

ERAN GILBOA
Fourth Defendant

BENJAMIN KARASIK
Fifth Defendant

IAN CRAIG PAMENSKY
Sixth Defendant

MATTHEW WRIGHT
Seventh Defendant

Catchwords:

Practice and procedure - Pleadings - Leave to amend particulars of statement of claim - Case management principles - Whether amendment causes undue prejudice - Whether amendment causes adjournment of trial - Rules of the Supreme Court 1971 (WA) O 21 r 5 - Application allowed

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Leave to amend statement of claim granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett & Mr A Tharby
First Defendant	:	Mr J MacLaurin SC & Ms J Moore
Second Defendant	:	Mr J MacLaurin SC & Ms J Moore
Third Defendant	:	Mr J MacLaurin SC & Ms J Moore
Fourth Defendant	:	Mr J MacLaurin SC & Ms J Moore
Fifth Defendant	:	Mr J MacLaurin SC & Ms J Moore
Sixth Defendant	:	Mr S M Davies SC & Mr F Merenda
Seventh Defendant	:	Mr C P K Russell

Solicitors:

Plaintiff	:	Bennett + Co
First Defendant	:	DLA Piper Australia - Perth
Second Defendant	:	DLA Piper Australia - Perth
Third Defendant	:	DLA Piper Australia - Perth
Fourth Defendant	:	DLA Piper Australia - Perth
Fifth Defendant	:	DLA Piper Australia - Perth
Sixth Defendant	:	Jackson McDonald
Seventh Defendant	:	Wotton + Kearney Lawyers (Perth)

Case(s) referred to in decision(s):

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296
Hamilton v Whitehead (1988) 166 CLR 121
Lee v Lee's Air Farming Ltd [1961] AC 12
Parkes v Prescot (1869) LR 4 Ex 169
R v Cooper (1846) 8 QB 533; (1846) 115 ER 976
R v Drake (1706) 90 ER 1134
R v Paine (1696) 5 Mod Rep 163; (1696) 87 ER 584
Salomon v Salomon & Co Ltd [1897] AC 22
Webb v Bloch (1928) 41 CLR 331

LE MIERE J:

Summary

By minute filed on 29 January 2021, the second day of the trial, the plaintiff applied to amend the particulars to [40] and [52] of his second amended statement of claim filed 8 August 2019. For convenience, I will refer to as the statement of claim in relation to the sixth defendant, Mr Pamensky.
On 4 February 2021 I made the following orders:
1.The plaintiff has leave to amend particular (b) to [40] of the second amended statement of claim in accordance with [1]…

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 De Kauwe v Cohen

Details

AGLC: De Kauwe v Cohen [2021] WASC 25
Case: [2021] WASC 25
Decision Date

CaseChat Overview and Summary

In the case of De Kauwe v Cohen, the plaintiff, Brendan James De Kauwe, applied to amend the particulars to paragraphs 40 and 52 of his second amended statement of claim, filed on 8 August 2019, on the second day of the trial. The application was against the sixth defendant, Mr Eran Gilad. The defendants opposed the amendments on the grounds that the plaintiff's discretion to allow the amendments had not been enlivened, and that allowing the amendments would cause prejudice to the defendants. The court considered the objectives of the Rules of the Supreme Court 1971 (WA) O 1 r 4A and r 4B, which required the court to consider all of the circumstances, including the explanation from the party seeking the amendment of the delay in seeking the amendment, the circumstances giving rise to the need for an amendment, the nature and importance of the amendment to the party seeking it, the extent of the delay and the costs, the prejudice which might follow, and the point the litigation has reached. The court found that the plaintiff had always, after becoming aware of them, intended to rely upon the matters in the proposed particulars as part of his case that Mr Pamensky authorised, approved, intended, or adopted the content of, the Releases. The court also found that the amendments did not prejudice the defendants or cause any undue burden on them, and that allowing the amendments would not require an adjournment of the trial or waste any court resources. Therefore, the plaintiff was granted leave to amend the particulars to paragraphs 40 and 52 of his second amended statement of claim.

The final orders made by the court were that the plaintiff had leave to amend particular (b) to [40] of the second amended statement of claim in accordance with [1] of the plaintiff's further and better particulars filed on 29 January 2021; the plaintiff had leave to amend the particulars to [52] of the second amended statement of claim insofar as they relate to the sixth defendant in accordance with [2] of the plaintiff's further and better particulars filed on 29 January 2021; the defendants have leave to file and serve a minute of any proposed further re-amended defence; and the costs of the plaintiff's application to amend the particulars to [40] and [52] of the second amended statement of claim were reserved.

Orders