Dewheath Pty Ltd v Edmunds
[2013] NSWSC 553
•17 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: Dewheath Pty Ltd v Edmunds [2013] NSWSC 553 Hearing dates: 08/08/2012, 09/08/2012, 10/08/2012 Decision date: 17 May 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Leave to the defendants to file and service an amended Defence on or before 4pm 31 May 2013.
(2) I order the defendants to pay the plaintiff's costs of and occasioned by the amendments on an ordinary basis.
(3) I order that such costs be paid forthwith.
(4) I grant leave to the plaintiff to proceed to an assessment of costs.
(5) I stand the proceedings over for further directions to 9am on 7 June 2013 before the Registrar.
Catchwords: PROCEDURE - notice of motion - leave sought to file amended defence - withdrawal of admissions - ambiguous statement of claim - additional defences - whether new defences affect the factual dispute between the parties and prejudice the plaintiff - no point of general principle Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Limitation Act 1969
Professional Standards Act 1984Cases Cited: Dare v Pulham [1982] HCA 70; (1982) 148 CLR 458
McGuirk v University of NSW [2009] NSWSC 1424 at [24]Category: Procedural and other rulings Parties: Dewheath Pty Ltd (P)
Mark Strickland Edmunds (D1)
Mark Edmunds Associates Pty Ltd (D2) Allianz Australia Insurance Ltd (D3)Representation: Counsel:
S J Burchett (P)
A J McInerney (D1, D2 & D3)
Solicitors:
Mason Lawyers (P)
TressCox Lawyers (D1, D2 & D3)
File Number(s): 2009/297430
Judgment
By a Notice of Motion, filed on 24 April 2012, each of the defendants, Mark Strickland Edmunds, Mark Edmunds & Associates Pty Ltd and Allianz Australia Insurance Limited seek leave, pursuant to s 64(1)(b) of the Civil Procedure Act 2005 to file Amended Defences.
The plaintiff, Dewheath Pty Ltd, opposes leave being granted to file the Amended Defences.
For the reasons which follow, I have decided that leave ought be granted to the defendants to file the Amended Defences, but so as not to include all of the defences which they have sought in the Notice of Motion.
General Background
The three defendants are sued in the proceedings by Dewheath for professional negligence arising out of services provided by Mr Edmunds, the first defendant, to Dewheath. Mr Edmunds is a qualified accountant.
At relevant times, he practised either under the company name of Mark Edmunds Associates Pty Ltd, or else Edmunds Buckley & Associates Pty Ltd. Edmunds Buckley & Associates Pty Ltd has been deregistered, and accordingly Allianz Australia Insurance Ltd, which was its insurer, is joined as the third defendant.
For present purposes, there is no difference in the position of the three defendants. In essence, the case turns on the conduct of Mr Edmunds, and what he did, or else what he ought to have done, for Dewheath.
Dewheath was at all relevant times engaged in property development. In particular, in mid-to-late 2002, it was engaged in a development involving, amongst other things, the initial construction, and sale of residential units, and ultimately the leasing of some remaining residential units in a development built at Warners Bay in NSW.
The central bone of contention is whether, and if so to what extent, goods and services tax would be payable by Dewheath in respect of the residential units if they were leased, rather than if they were sold. This issue also involved what GST input credits would be claimed by Dewheath.
There are significant factual issues between Dewheath and Mr Edmunds about what he was told, if anything, about the plaintiff's intention to retain and then lease some of the residential units in the development.
In September 2002, at a time before the construction of the development had commenced, a number of the units were released for sale "off the plan". In February 2003, Dewheath entered into a building contract with Kingston Building Pty Ltd to construct the development.
For various reasons which do not need to be discussed in detail, the construction of the development was delayed, with the consequence that settlement of the sales of units which had been bought off the plan, was delayed until July 2004.
In May 2003, the defendants lodged a series of Business Activity Statement returns on behalf of the plaintiff with the Australian Taxation Office. Those BAS returns covered all periods from 30 September 2000 up to and including 31 March 2003. The defendants continued to lodge BAS returns in a timely way for the periods ended 30 June 2003 to September 2004.
An audit was conducted of Dewheath by the Australian Taxation Office. After it was concluded, in February 2005, the ATO wrote to Dewheath in the following terms:
"Input tax credits can be claimed for the GST paid on creditable acquisitions made for the construction of new residential premises where the premises is intended to be sold on completion. However, if it is subsequently leased after construction to a third party, the supply is considered changed to be the supply of a residential premises and as such, is input taxed. No input tax credits in respect of the construction of the premises are able to be claimed. ..."
As a consequence of the ATO audit, a creditor's statutory demand was served on Dewheath by the ATO in an amount of $1,044,324.02, which included sums for unpaid GST, arising from disallowed input tax credits of $197,303 and a penalty of $20,013.50.
The plaintiff borrowed money to pay the ATO in May 2005. As well, the borrowed monies were used for other purposes of Dewheath.
On 23 February 2009, Dewheath commenced these proceedings. On 14 July 2009, a defence was filed.
The matter has proceeded to the stage that evidence has been substantially filed, but no hearing date has as yet been allocated. It is anticipated that a hearing date will be allocated shortly.
Proposed Amended Defences
The Notice of Motion seeks leave to file Amended Defences. Relevantly, each defence is in identical terms. In the analysis which follows, only one Defence will be dealt with. However, the conclusions which are reached, and the reasons which are expressed, apply equally to all Defences. It is simply a matter of convenience to deal with one Defence.
The proposed Amended Defence has two substantially different parts.
The first part seeks to withdraw, or else recast, earlier admissions or partial admissions made in the Defence which was first filed.
The second part of the Defence seeks to add a variety of defences which were not previously pleaded. These new defences are:
(a) a defence of contributory negligence;
(b) a defence pursuant to s 5O of the Civil Liability Act 2002;
(c) a defence of proportionate liability pursuant to s 35 of the Civil Liability Act;
(d) a defence pursuant to the Professional Standards Act 1984, being a scheme which it is said, limits the maximum liability; and
(e) a limitation defence pursuant to the provisions of the Limitation Act 1969.
It will be convenient to consider these proposed amendments separately in these two broad parts.
Withdrawal of Admissions
The Statement of Claim is pleaded using general terms. It lacks specificity as to time and precision as to detail. As is not uncommon, language is broad, and loosely used.
Many of the admissions which are sought to be withdrawn in the Amended Defence relate to the existence, and the content, of the retainer between Dewheath and Mr Edmunds. Mr Tapp, the directing mind of Dewheath, was the person who actively engaged Mr Edmunds' services.
The retainer, and the extent of it, which is pleaded depends, so it seems, upon matters that are both express and implied. There is little, if any, issue about the express matters. The real issue appears to be about what can be implied, as a consequence of the retainer, in terms of the obligation owed by Mr Edmunds to Dewheath.
The initial Statement of Claim, filed 12 February 2009, in a number of paragraphs pleaded the retainer regularly using this phrase:
"... retained Edmunds ... as its accountant and tax adviser ...".
The phrase "... accountant and tax adviser ..." is repeated by Dewheath's solicitors in the answer to a request for particulars dated 27 May 2009, without elaboration, seemingly as a term of art.
The original Defence, in paragraph 5(a), admitted that the director of the plaintiff, Mr Tapp, who it is accepted, was the directing mind of the plaintiff, sought and obtained "taxation advice" from the first defendant. That phrase reflects the use of the phrase in the Statement of Claim that Mr Edmunds was retained as a tax adviser.
The phrases "tax adviser" and "taxation advice" are ambiguous.
It has become apparent from the evidence filed that Dewheath intended to include in that expression, an obligation upon the defendant to provide pro-active advice, namely, advice in advance of the occurrence of an event, about which he may not specifically have been requested to provide advice. The defendant on the other hand, took the phrase to mean the provision of advice if specifically requested, i.e. reactively to a request.
The affidavit of Dewheath's solicitor, Mr Curry, has as one of the documents exhibited to it a letter written by Mr Edmunds to a solicitor, Mr Gray. Although marked "Without Prejudice" Mr Edmunds did not object to its tender. It is clear from the terms of that letter, which was written in August 2005, about three and a half years before these proceedings were commenced, that there was a significant ambiguity about, and dispute about, the existence of a retainer and, if one existed, the content of it, and the extent of the obligation owed by Mr Edmunds to Dewheath.
The cross-examination, on the hearing of the Motion, of the solicitor for Dewheath, Mr Curry, also made it plain that he and Dewheath have always understood that the nature and content of the retainer, and the extent of the retainer, was in dispute. Mr Curry said in evidence that he had sought to address that dispute in the evidence which has been filed to date. Clearly if the Amended Defence, with respect to this paragraph, were permitted he may need to review the evidence to see what further evidence, if any, is required. There would be a cost occasioned by the amendment.
The uncertainty about the retainer and its content can also be seen in the expert report of WHK Horwath dated 3 February 2009, which was served by Dewheath at the same time as the Statement of Claim. That report records that specific advice was sought in July or August 2002, on the GST implications of selling and leasing the residential premises. Accordingly, any advice in response would be "reactive", as I have used that term, rather than "proactive". That understanding is consistent with what Mr Little, the solicitor for Mr Edmunds, and the other defendants, took as the meaning of the ambiguous phrase which I have earlier mentioned. However, that is not the essence of the case which Dewheath now seeks to make on the evidence.
The defendants argue that the real meaning which Dewheath attributed to this phrase only became apparent after the evidence, and that the Amended Defence seeks to correct, and make plain, the extent of the issues in dispute.
A pleading defines the issues which are to be litigated between the parties. Pleadings form the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance: Dare v Pulham [1982] HCA 70; (1982) 148 CLR 458 at 664.
Proper pleading is of fundamental importance in assisting courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2005; McGuirk v University of NSW [2009] NSWSC 1424 at [24] per Johnson J.
Here the real issue is whether the subsequent pleadings and defences, ought be permitted to be amended so as to reflect the evidence which has been filed in the proceedings, and to avoid the consequences of an unintentionally ambiguous initial pleading - the Statement of Claim.
I am satisfied that, in the exercise of my discretion, this amendment ought be permitted. The nature, content and extent of the retainer is in dispute. It is covered by the evidence. The pleading ought reflect that dispute. There is no prejudice to the plaintiff, except some incurring of additional costs, which can be remedied by an appropriate order.
A number of the remaining admissions which are to be withdrawn, by the Amended Defence, deal with substantially similar issues, namely the existence of the retainer, and its content, including the meaning to be given to the ambiguous phrase which I have earlier described. Many of the same considerations will apply.
The next amendment to the Defence seeks to withdraw an admission contained in paragraph 6(a) of the Defence. This paragraph admits that the plaintiff retained one of the defendant companies as its "tax adviser" between 1 July 1998 and 31 December 2002.
Again, as I have indicated with the previous amendment, the nature, content and extent of the retainer is in issue. The plaintiff and the defendant have different views as to the meaning of the words "tax adviser". That is a matter addressed in the evidence. The pleading ought be permitted to be amended to enable this dispute to be actively litigated. There is no prejudice to the plaintiff.
Paragraph 7 seeks an identical amendment to paragraph 6, with the exception that it refer to a different company. For the reasons I expressed with respect to the paragraph 6 amendment, this amendment ought be permitted.
In paragraph 8 of the Defence, amendments are sought to enable the ambiguity in the phrases "taxation advice", or "tax advice" or" tax adviser" to be identified and specifically pleaded. There is no real difference in substance in the Amended Defence and the original Defence except that it makes provision consequent upon earlier amendments, enabling the nature, content and extent of the retainer to be debated at trial.
For the reasons I have previously expressed, I would allow this amendment.
Paragraph 9.1 again seeks to make amendments which have the effect of reflecting the debate between the parties about the nature and content of the retainer and the extent of it. The phrase pleaded in the initial Statement of Claim, was intended by the pleader to convey something more than the pleader of the Defence understood. As I have said, the term is capable of ambiguity and, in light of the evidence which has been served, it is plain that the defendant's advisers did not understand completely what it was that the plaintiff intended by his pleading.
The central issue remains, which is the nature, content and extent of the retainer and whether there was specific advice sought, or not, with respect to the problem discovered by the ATO audit.
The evidence addresses this matter. The Defence should be allowed to be repleaded to reflect the extent of the debate between the parties. I would allow this amendment.
The next amendment sought, is to delete an admission to the effect that it was reasonably foreseeable that the plaintiff expected the first defendant
"to advise of any adverse tax consequences of the matters and courses of action upon which [the defendant's] advice was sought".
It seems to me that this admission reflects the defendants' real case, as I understand it to be. The defendants' real case is that advice was provided upon specific request. As the existing Defence stands, it simply admits that if the defendants' advice was sought, then it was foreseeable that the plaintiff expected the defendant to advise of the taxation consequences of the matters. I do not know, and it is unclear, what the adjective "adverse" refers to. The obligation to pay tax is imposed by law. To the extent that the sum of tax payable is that fixed by the law, it cannot be regarded as an adverse consequence. However, I do not think that the adjective is the reason why this admission is sought to be withdrawn. Rather, the application arises because there was concern expressed by counsel for the defendants that if this was not withdrawn, there would be an inconsistency about the extent of the retainer and its content between the existing Defence and the Amended Defence.
I cannot see that inconsistency, and see no reason why this amendment ought be permitted. If specific advice was sought by Dewheath, and it was provided, it seems impossible to resist a conclusion that reliance by Dewheath was foreseeable. I do not allow this amendment.
The final admission sought to be withdrawn is that in paragraph 13.
This admission seems to me to be consequential upon the earlier amendments. I would permit it.
In summary, with respect to those parts of the Amended Defence which seek to withdraw admissions, I propose to allow the amendments to the Defence, except for the amendment in paragraph 9.2(d). The Defence as originally pleaded in that respect should remain.
Additional Defences
In considering the submissions about these additional defences, it is convenient to provide a context which is available from the evidence to which the Court was taken on the Motion:
(a) according to the report of Mr A Kelly of WHK Horwath dated 3 February 2009, the component of Dewheath's damages claim referable to GST adjustment made by the ATO was $147,898 as at 28 August 2007;
(b) according to the report of Suzanne Delbridge-Bailey dated 29 November 2011, the damages claimed by Dewheath fall in the range from $1.696M to $3.867M;
(c) since the defendants filed their defences, which are now sought to be amended, Dewheath has incurred legal costs and expenses of about $400,000, of which about $190,000 represents solicitors costs;
(d) the third defendant, Allianz Australia Insurance Ltd, offers a master policy of professional indemnity insurance for accountants which is called the "Accountants Professional Indemnity Policy". Pursuant to that master policy, each of the first two defendants, and Edmunds Buckley Associates Pty Ltd, were insured, for various periods with a limit on indemnity of $2M plus legal costs incurred with respect to a claim;
(e) these policies are "claims made" policies, namely policies which provide indemnity in respect of liability arising "... from any claim first made against you ..." during the period of cover. There is a dispute as to whether the policies respond to the claims which would, but for deregistration, be made against Edmunds Buckley Associates Pty Ltd. There seems to be no dispute about the existence of a policy for the other two defendants;
(f) at all times since the Defence was filed, Dewheath has prepared the matter, by retaining experts and preparing statements, giving discovery, and properly addressing the preparation of the matter, against an understanding that no issue was raised by way of a limitation defence, or else a defence limiting the recoverable sum for damages;
(g) had Dewheath been aware of either or both of these potential defences, it would have undertaken its preparation in a substantially different way, including by considering seeking a separate determination of questions raised by such defences, transfer to the District Court, considering whether the expenditure of obtaining reports from the experts was properly justified as being reasonable, and consideration of whether an earlier mediation should be engaged in; and
(h) the scheme pursuant to the Professional Standards Act 1994, which the defendants wish to plead, would, if applied, provide a limit on the defendants' liability for damages, to an amount "... calculated by multiplying the reasonable charges for the service by 10", which amount cannot be less than $500,000 or more than $20M".
Additional Defences
Civil Liability Act - s 50
It is necessary to consider the amendments which seek to add discrete defences, which were not previously pleaded. The first of these is the pleading under s 5O of the Civil Liability Act 2002.
That provision enables a person practising a profession to escape liability for negligence if the defendant establishes that he or she has acted
"... in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice."
In other words, s 5O goes to the question of the yardstick of proper practice, by which a professional's conduct is to be judged.
The evidence clearly establishes a real dispute between the parties about whether such advice as was provided was adequate and proper, and whether, in accordance with the ordinary practice of accountants, having regard to the terms of the retainer, the defendant was to be expected to have provided particular advice which was not provided.
Expert opinion has been sought. The experts having provided their opinion are at issue. It will be necessary in due course, for those experts to confer and produce a joint report, in accordance with the Court's practice, setting out areas of agreement and disagreement.
The addition of this defence, which substantially reflects the common law, does not change the substance of the expert opinion or the debate between them. It does not affect any underlying fact. There is no prejudice pointed to by the plaintiff.
Whilst it ought to have been pleaded initially, I can see no reason why this pleading ought not be allowed, and I will allow it to be pleaded.
Contributory Negligence
In paragraph 23 of the proposed Amended Defence, the defendant seeks to plead that the plaintiff itself contributed to its own loss and damage by failing, shortly put, to have taken prudent steps about the assessment of the financial feasibility, and other related financial aspects, of the development. As well, the particulars include a failure to keep proper written records, failure to have records which enabled the timely and proper preparation of income tax returns and BAS returns, and failure to prudently provide for adequate contingency margins in the costs assessments related to the profitability of the development.
Having regard to the evidence of Mr Curry, the solicitor for Dewheath, I am satisfied that he, as an experienced litigation solicitor, is not caught wholly unprepared by the proposition that his client by acting negligently may have contributed to its own loss.
In any event, it is apparent from the submissions of the defendants, that regardless of this proposed amendment to the pleading, a real issue arises as to how much of the loss is to be, or can properly be, attributed to the negligent conduct pleaded in the Statement of Claim. It is apparent that the plaintiff claims a significant sum of damages, and the defendant submits that, even if it is liable, only a much smaller sum is attributable to its conduct.
The plea of contributory negligence does not, in my assessment, do anything to extend the factual dispute between the parties. It formalises the issues between the parties with respect to an allowable defence, which is not different in substance, in my assessment in the facts of this case, from the question of which conduct caused which damage.
I can see no prejudice to the plaintiff, and none is claimed. I will allow this pleading.
Civil Liability Act - s 35
The third defence which is sought to be added in the Amended Defence is one of the existence of a concurrent wrongdoer. The first concurrent wrongdoer pleaded is Mr Tapp, who is the director and directing mind of Dewheath. The particulars pleaded with respect to the concurrent wrongdoing of Mr Tapp, are the same or substantially the same as the particulars pleaded of contributory negligence. There is no difference in substance between these parts of the pleadings. There is no reason why this pleading, which is an alternative to contributory negligence, ought not be allowed.
Dewheath submitted that it was prejudiced by this amendment because it was now out of time to file a cross-claim against Mr Tapp. It is not an easy question to determine whether any cross-claim would be out of time, and it is unnecessary for me to make such a determination. That is because, having regard to the relationship between Dewheath and Mr Tapp, namely that he is the sole director and shareholder of Dewheath, I do not regard the loss of the ability to lodge a cross-claim, if that be established, as creating any prejudice to Dewheath. Whilst the evidence establishes that people other than Mr Tapp lent money to Dewheath for the purpose of the subject development, there is no evidence that those "investors" who are not parties to these proceedings, would be adversely affected by the inability of Dewheath to cross-claim against Mr Tapp.
Accordingly, I am not satisfied that Dewheath has established the prejudice which it claims.
The second concurrent wrongdoer identified in the amended pleading is Mr Roger Gray, who was Dewheath's solicitor at all relevant times.
It is apparent from the evidence that a claim was made by Dewheath against Mr Gray for monetary compensation for his alleged negligence. That claim, which did not come to litigation, was resolved by LawCover, the indemnity insurer for Mr Gray, making a payment of a sum which Dewheath agreed to accept.
In essence, the subject matter of the claim was that the conduct of Mr Gray had caused, or else materially contributed to, a significant delay in the settling of the sales of the units which had been sold off the plan. It was claimed that the delay resulted in some sales not proceeding to completion. It was said that this delay, including the loss of those sales, then occasioned loss to the plaintiff, and contributed to the decision to retain some units and lease them out.
The issue of substance is whether the monies received from LawCover relate to the same loss as that which is claimed in these proceedings. That is a live issue. It is a live issue because there is a question raised in the defendants' case about the causation of loss, and whether the entirety of the loss is recoverable.
In my assessment this pleading does nothing more than express, in a different way, that same causation of damages question. There is no reason not to allow this claim, and I do so.
Professional Standards Act 1994
The next additional defence which the defendants wish to add to their pleading, is one pursuant to the Professional Standards Act 1994. This pleading claims that because the defendants were each a member of CPA Australia, which had in operation a scheme under the Professional Standards Act, there is in operation a cap on the total sum for civil liability for members of the scheme. It is pleaded that the cap is a maximum of $500,000 for any award of damages and interest and order for costs.
Dewheath's total claim for damages exceeds, by a very significant sum, this cap. At its upper limit, the plaintiff submits that it may be entitled to recover $3.867M in damages plus interest and costs.
Although a draft of a proposed Amended Defence was served in August 2011, which included this defence, this Motion is the first attempt to permit an amendment to plead such a limitation.
The only reason advanced by the defendants for the pleading of this defence is that it was thought of as being appropriate, when counsel was changed, and a new counsel was briefed.
As I have pointed out earlier, Dewheath submits, and Mr Curry's evidence is, that it would have conducted the litigation very differently had the maximum sum for damages been limited to $500,000 as the scheme apparently provides.
I accept this evidence. A prudent solicitor acting for a party to litigation which can only recover a maximum of $500,000 is unlikely to spend significant sums on expert witnesses, and attempting to prove damages which exceeds that sum. In other words, the proof of a claim for $500,000 in circumstances such as the present, is considerably easier, less expensive and less demanding that would be proof of a claim for $3.867M or more. I am satisfied that considerable expense has been incurred already in proving Dewheath's claim for the higher sum of damages. It is not easily possible to provide for orders which would remedy such expense. The delay in seeking this amendment is not adequately explained.
The existence of a scheme under the Professional Standards Act for accountants was known to the defendants themselves.
The evidence on the motion includes a letter written by Mr Edmunds, on the letterhead of Mark Edmunds Associates Pty Ltd, dated 14 June 2005, which includes this printed line:
"Liability limited by the Accountants Scheme, approved under the Professional Standards Act 1994 (NSW)"
The letter of Mason Lawyers, the law firm representing Dewheath, sent to TressCox, the defendants lawyers, contained a similar statement to this effect:
"Liability limited by a scheme approved under Professional Standards legislation"
The letter of TressCox to Mason Lawyers, also contained a statement to like effect. Allianz Australia was at the relevant time an insurer which, under its master policy of professional indemnity insurance, insured accountants who were members of the Accountants Scheme under the Professional Standards Act.
There is no question, but that the existence of the Accountants Scheme, and its effect on the limitation of liability, was well known to the lawyers involved, Mr Edmunds, and Allianz Australia. Whether advantage was to be taken of the limitation of liability was a matter for the defendants. If advantage was to be taken, a pleading to that effect was necessary in the defence. It was open to the defendants not to plead the defence, thereby signifying that they did not propose to rely upon it.
It was entirely reasonable for Dewheath's solicitor to form the view that in the absence of such a specific pleading, the defendants had waived their right to rely upon such limitations of liability, and to proceed to the preparation of Dewheath's claim, on the basis that the available cap was not to be relied upon by the defendants.
The best that can be put on behalf of the defendants is that such a defence seems to have been overlooked when the Defence was originally filed. This is not an adequate reason in circumstances where the defence is so well known. New counsel, no doubt attentive to all of the possible ways of defending the proceedings, has advised that the matter should be raised. There is significant prejudice to the plaintiff in raising it now.
I have considered whether or not such prejudice could be cured by an order for costs, but it seems to me that it would not be possible to untangle the costs referrable to preparation of a larger claim. More importantly, an opportunity has been lost for a much earlier settlement of the proceedings which, in my assessment, would be much more likely if the claim was limited as it is now sought that this claim ought be.
In short, the proposed amendment to add this defence comes too late in the proceedings, no adequate explanation is offered for why it has only come to be pleaded now, the existence of the scheme was well known and ought to have been pleaded initially, over three years ago, and significant prejudice would be occasioned if the amendment was permitted.
I do not permit this proposed amendment.
Limitation Defence
Finally, the defendant seeks to add a limitation defence. It is alleged that some or all of the plaintiff's claim is statute barred under s 14(1) of the Limitation Act 1969.
A limitation defence, under this legislation, is something which must be pleaded. It is a defence which can be waived. Hence, the importance of it being pleaded.
For reasons similar to those which I have just expressed with respect to the limitation of the claim for damages, I am not satisfied that this Limitation Act pleading ought be allowed.
First, it comes very late in the proceedings. Secondly, in the absence of a limitation defence, Dewheath was entitled to proceed upon the basis that the defendants were not relying upon any limitation defence, and that it had been waived. Dewheath's solicitor reasonably took that view.
Thirdly, the task of preparation for, and expenditure of money upon, a case where a Limitation Act defence is raised, is often very different from the preparation for a case in which it is waived. One possibility, although not universally so, is that one of the parties may seek that a separate issue be determined with respect to the Limitation Act defence. Alternatively, a reply might be pleaded which sets out a range of facts, matters and circumstances upon which the plaintiff relies to contradict the pleading of the Limitation Act defence.
Fourthly, here no adequate explanation is offered as to why the defence was not pleaded earlier. I do not accept that the availability of a limitation defence only became apparent when all of the evidence had been filed and served. Nor did the defendants persuasively point to any part of the evidence which had first emerged, and of which they did not know, which has given rise to this limitation defence.
This is a late defence, for no good reason which causes prejudice. It ought not be permitted.
Conclusion
I will grant leave for the Amended Defence to be filed.
However, I will not allow the amendment contained in paragraph 9.2(d), nor will I allow paragraphs 25 and 26 of the proposed Amended Defence.
Costs
The amendment to the Defence has largely been necessitated by the insertion of new counsel into the proceedings, and the defendants' failure to properly appreciate the inadequacy of the original Defence. I see no reason why the defendants should not pay the plaintiff's costs of and occasioned by the amendments.
The occasion for this amendment application was a discrete occasion and took place over a number of days. I see no reason why the plaintiff should not be able to proceed to an assessment of those costs forthwith.
I doe not see any reason why costs ought be ordered on anything other than the ordinary basis.
Orders
I make the following orders:
(1) Leave to the defendants to file and service an amended Defence on or before 4pm 31 May 2013.
(2) I order the defendants to pay the plaintiff's costs of and occasioned by the amendments on an ordinary basis.
(3) I order that such costs be paid forthwith.
(4) I grant leave to the plaintiff to proceed to an assessment of costs.
(5) I stand the proceedings over for further directions to 9am on 7 June 2013 before the Registrar.
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Decision last updated: 17 May 2013
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