Dimarti v Westpac Banking Corporation - [2020] NSWSC 1342

Supreme Court

New South Wales

Medium Neutral Citation: Dimarti v Westpac Banking Corporation [2020] NSWSC 1342
Hearing dates: 26 August 2020 & 3 September 2020
Date of orders: 2 October 2020
Decision date: 02 October 2020
Jurisdiction: Common Law
Before: Rothman J
Decision:
The Court makes the following orders:
(1) Pursuant to the provisions of s 64(1)(b) and s 65(2)(c) of the Civil Procedure Act, the plaintiff has leave to amend the Statement of Claim by including a claim based on an allegation that the fraud was reported on 4 October 2011;
(2) The plaintiff shall file and serve within two weeks of the date of this judgment an Amended Statement of Claim in a form that is appropriate and which, to the extent that there is contained therein a claim for personal injury, is accompanied by a statement and documentation referred to in r 15.12 of the UCPR;
(3) The plaintiff shall pay the defendant’s costs of and incidental to the proceedings thrown away as a result of any amendments to the Statement of Claim on an indemnity basis;
(4) Pursuant to the terms of s 61 of the Civil Procedure Act, the Court directs that no amended pleading filed by the plaintiff later than the time ordered above may be filed or served and, subject to any subsequent order of the Court, no further attempt at an appropriate pleading may be agitated.

Catchwords:
CIVIL PROCEDURE – Pleadings – Fraud – Amendment – Form and Content of Pleadings – Non-compliance with Rules relating to personal injury – lack of specificity in fraud allegation – leave granted to file amendment over objection.
LIMITATION OF ACTIONS – Fraud and personal injury – amendment to allege different cause of action – same or similar facts – operation of Civil Procedure Act – leave granted.

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 5B, 5C
Civil Procedure Act 2005 (NSW), ss 56, 64, 65(2)
Limitation Act 1969 (NSW), s 14
Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4, 15.12

Cases Cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Barnes v Addy (1874) LR 9 Ch App 344
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Farah Custodians Pty Limited v Commissioner of Taxation (No 2) [2019] FCA 1076
Gerace v Auzhair Supplies Pty Ltd (2014) 87 NSWLR 435; [2014] NSWCA 181
KTC v David (No 1) [2019] NSWSC 281
Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130

Category: Procedural and other rulings
Parties: Carmelo Dimarti (Plaintiff/Applicant)
Westpac Banking Corporation (Defendant/Respondent)
Representation:
Counsel:
N Obrart (Plaintiff/Applicant)
J Entwisle (Defendant/Respondent)
Solicitors:
Harper James Law Group (Plaintiff/Applicant)
DLA Piper Australia (Defendant/Respondent)

File Number(s): 2017/295316

Judgment

HIS HONOUR: By Motion on notice, dated 23 June 2020, the plaintiff, Carmelo Dimarti, seeks leave to file a proposed Further Amended Statement of Claim (hereinafter “FASOC”) in respect of proceedings in which the defendant…

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: [2020] NSWSC 1342
Decision Date: 02 October 2020

CaseChat Overview and Summary

The plaintiffs, Dimarti, brought a claim against Westpac Banking Corporation for various causes of action, including fraud and personal injury. The matter was heard in the Supreme Court of New South Wales. The dispute centred on the adequacy of the plaintiffs' initial pleadings and the subsequent application to amend these pleadings to include additional causes of action. The plaintiffs sought to amend their pleadings to include a claim for fraud, which was not initially specified, and to adjust the personal injury claim to align with procedural requirements.

The court had to determine whether the plaintiffs were entitled to amend their pleadings to include a fraud claim, which was not initially specified, and to modify the personal injury claim to comply with procedural requirements. Additionally, the court needed to consider whether the amendment related back to the original pleadings under the Civil Procedure Act, thereby preserving the plaintiffs' cause of action despite the delay in filing the amendment.

The court found that the plaintiffs' initial pleadings were deficient in specificity concerning the fraud claim and did not fully comply with the procedural requirements for personal injury claims. However, the court noted that the proposed amendments related to the same factual matrix as the original pleadings. Applying the principles of the Civil Procedure Act, the court concluded that the amendment was permissible and should relate back to the original filing date. Consequently, the court granted the plaintiffs leave to amend their pleadings.

The court ordered that the plaintiffs be granted leave to amend their pleadings to include the fraud claim and to adjust the personal injury claim in accordance with the procedural requirements. The amendment was to relate back to the original filing date, preserving the plaintiffs' rights under the limitation periods.

Orders