De Kauwe v Cohen [No 3] - [2021] WASC 286

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   DE KAUWE -v- COHEN [No 3] [2021] WASC 286
CORAM:   LE MIERE J
HEARD:   27 JULY 2021
DELIVERED          :   19 AUGUST 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 - Statement of claim

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Partial leave to amend granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett & Mr A Tharby
First Defendant	:	Mr J D MacLaurin SC & Ms J Moore
Second Defendant	:	Mr J D MacLaurin SC & Ms J Moore
Third Defendant	:	Mr J D MacLaurin SC & Ms J Moore
Fourth Defendant	:	Mr J D MacLaurin SC & Ms J Moore
Fifth Defendant	:	Mr J D 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)

Cases referred to in decision:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Belmont Finance Corpation Ltd v Williams Furniture Ltd [1979] Ch 250
Dougherty v Chandler (1946) 46 SR (NSW) 370
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471
Middleton v O'Neill (1943) 43 SR (NSW) 178
Streeter v Western Areas Exploration Pty Ltd (No 2) [2011] WASCA 17; (2011) 278 ALR 291

LE MIERE J:

Summary

The plaintiff has applied to amend his statement of claim in the terms of his minute of proposed fourth amended statement of claim filed 4 August 2021. The minute contains three proposed amendments. The first is to amend [2A] and [4]. The second is to insert a new paragraph, [14.12A], together with the particulars (i) - (xii). The third is to insert new paragraphs - [56.13] and [56.14].
The amendments to [2A] and [4] are not opposed by any of the defendants. Those amendments will be allowed and the statement of claim amended accordingly.
The amendment to insert [14.12A] together with the particulars is opposed by all of the defendants. The application to amend by inserting that paragraph is refused.
The amendment to insert [56.13] and [56.14] is opposed by all of the defendants. Those amendments will be allowed and the statement of claim amended accordingly.

Amendments to [2A] and [4]

These amendments update the dates on…

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] WASC 286
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the plaintiff, Brendan James De Kauwe, applied to amend his statement of claim in his ongoing defamation case against multiple defendants. The defendants opposed the application on various grounds. Justice Le Miere considered the application, focusing on the discretion to allow an amendment under Order 21 Rule 5(2) of the Rules of the Supreme Court 1971 (WA). The court must consider whether granting the amendment is just and in the interest of justice, taking into account factors such as the delay caused by the amendment, the extent of wasted costs, and the potential for unfair prejudice to the defendants.

The plaintiff sought to amend his statement of claim to include a new paragraph alleging that the defendants relied on a revenue agreement that was not genuine. The defendants opposed this amendment, arguing that it was a claim of fraud that had not been distinctly pleaded. The court held that the plaintiff could not rely on the alleged sham agreement in support of the issues in the action, as it was not pleaded or particularised in the existing statement of claim. Consequently, the amendment to insert the new paragraph was refused.

The plaintiff also sought to insert two new paragraphs alleging additional publications by one of the defendants, which were discovered late in the proceedings. The defendants opposed this amendment, arguing that it caused irreparable unfair prejudice and would result in delay. The court found that the plaintiff had adequately explained the delay in discovering the emails, as they were discoverable documents in the possession of the defendant concerned. The court also held that the proposed amendment did not disclose a reasonable claim against one of the defendants, but allowed the amendment against the other defendants.

In conclusion, the court granted partial leave to amend the plaintiff's statement of claim, refusing the amendment to insert the allegation of a sham agreement but allowing the amendment to include the additional publications by the defendant.

Orders