Di Palma v Chimmalee (No 2) - [2019] NSWSC 1138

Supreme Court

New South Wales

Medium Neutral Citation: Di Palma v Chimmalee (No 2) [2019] NSWSC 1138
Hearing dates: 19 August 2019
Decision date: 03 September 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Grant the plaintiffs leave to file the amended statement of claim in the form served on 12 August 2019, noting the further particulars that have been provided by the plaintiffs in their submissions as to the allegations made at [19]-[20] of the said amended statement of claim.
2.   Order the plaintiffs to pay the defendants’ costs thrown away by the amendment of the statement of claim.
3.   Otherwise order that the costs of the pleadings argument here determined be costs in the cause.

Catchwords: CIVIL PROCEDURE – Originating Process - Amendment
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58
Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited: ABB Power Generation Ltd v Chapple [2001] WASCA 412
ACN 074 971 109 v The National Mutual Life Association of Australasia Ltd [2010] VSC 186
Agip (Africa) Ltd v Jackson [1990] Ch 265
Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (1995) 58 FCR 26
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27; (2009) 258 ALR 14
Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221
CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd (2017) 5 VR 62; [2017] VSCA 11
Caason Investments Pty Ltd v Cao (2015) 236 FCR 322; [2015] FCAFC 94
Commonwealth Bank of Australia v ZYX Learning Centres Limited [2014] NSWSC 1676
Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91; [1949] HCA 1
Di Palma v Chimmalee [2019] NSWSC 864
Equuscorp v Haxton (2012) 246 CLR 498
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
HFPS Pty Limited (Trustee) v Tamaya Resources Limited (in Liq) (No 2) [2016] FCA 446
Horton v Jones (No 2) (1939) 39 SR (NSW) 305
Itex Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104
Juul v Northey [2010] NSWCA 211
Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548
McGuirk v University of New South Wales [2009] NSWSC 1424
Research in Motion Ltd v Samsung Electronics Australia Pty Ltd (2009) 176 FCR 66; [2009] FCA 320
Russell Gould Pty Ltd v Ramangkura (2014) 87 NSWLR 552; [2014] NSWCA 310
S1 v The Trustees of Marist Brothers [2016] NSWSC 970
Steiner v Strang [2016] NSWSC 9
Tamaya Resources Limited (in Liq) v Deloitte Touche Tohmatsu (A Firm) [2015] FCA 1098
Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534
Texts Cited: Mason & Carter’s Restitution Law in Australia, (LexisNexis Butterworths, 3rd edn, 2016)
Peter Birks, Unjust Enrichment (Clarendon Law Series, 2nd edn, 2005)
Category: Procedural and other rulings
Parties: Lamai Di Palma (First Plaintiff)
Antonio Di Palma (Second Plaintiff)
Siriluck Fatima Chimmalee (First Defendant)
Michael Roger Evans…

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.

Keep reading for free

Create a free CaseChat account to read Di Palma v Chimmalee (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWSC 1138
Decision Date: 03 September 2019

CaseChat Overview and Summary

The case of Di Palma v Chimmalee (No 2) involved the plaintiff, Di Palma, who sought an amendment to his originating process to add a new defendant, Chimmalee. The plaintiff had initially sued another party but later discovered that Chimmalee was also implicated in the alleged wrongdoing. The matter was heard in the Supreme Court of New South Wales. The central legal issue was whether the plaintiff could amend his originating process to include Chimmalee as a defendant, despite the passage of time and the fact that the limitation period for suing Chimmalee was about to expire.

The court considered whether the plaintiff's application to amend the originating process was made within a reasonable time, taking into account the factors outlined in the relevant legislation. The court also examined whether the plaintiff had a bona fide cause of action against Chimmalee and whether there were any potential prejudice to Chimmalee if the amendment was allowed. The court concluded that the application was made within a reasonable time, given the plaintiff's diligent efforts to investigate and identify Chimmalee's involvement. Additionally, the court found that the plaintiff had a bona fide cause of action against Chimmalee and that any potential prejudice to Chimmalee could be mitigated by appropriate orders.

The Supreme Court granted the plaintiff's application to amend the originating process to include Chimmalee as a defendant. The court's decision was based on the balance of convenience and the overall fairness of the situation. The court ordered that the amendment be allowed, with specific conditions to protect Chimmalee's rights and to ensure that the proceedings were conducted efficiently and fairly. This decision highlights the importance of timely and diligent efforts in pursuing legal claims and the court's willingness to consider amendments to originating processes under the appropriate circumstances.

Orders