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Dymocks Book Arcade Pty Ltd v Capral Ltd

Dymocks Book Arcade Pty Ltd v Capral Ltd

Case [2011] NSWSC 1423 23 November 2011

Appeal

Amendment of Pleadings

Jurisdiction

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Dymocks Book Arcade Pty Ltd v Capral Ltd (formerly Alcan Australia Ltd) & anor [2011] NSWSC 1423
Hearing dates: 18 November 2011
Decision date: 23 November 2011
Jurisdiction: Equity Division - Technology and Construction List
Before: Ward J
Decision:
Leave granted to plaintiff to amend Technology and Constructions List Statement

Catchwords: CIVIL PROCEDURE - application by the plaintiff for leave pursuant to ss 64 and 65 of the Civil Procedure Act 2005 (NSW) to amend its summons and further to amend its amended technology and construction list statement - HELD - leave granted
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Trade Practices Act 1974 (Cth)
Cases Cited: Agricultural & Rural Finance Pty Ltd v Kirk & Anor [2011] NSWCA 67; (2011) 82 ACSR 390
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 258 ALR 14
Arthur Young & Anor v Tieco International & Ors (1995) 182 LSJS 367
BP Australia Ltd v Brown & ors [2003] NSWCA 216; (2003) 58 NSWLR 322
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Bruce v Odhams Press Ltd [1936] 1 KB 697
Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261
Chahwan v Euphoric Pty Ltd [2009] NSWSC 805; (2009) 73 ACSR 252
Cyril Smith & Associates Pty Ltd v Owners Strata Plan No 64970 [2011] NSWCA 181
Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370
Greenwood v Papademetri [2007] NSWCA 221
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2004] NSWSC 1136
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 3) [2005] NSWSC 255
Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
New Cap Reinsurance Corporation v Reaseguros Alianza SA [2004] NSWSC 787; (2004) 186 FLR 175
Owners Corporation Strata Plan 61390 v Multiplex Corporate Agency Pty Ltd & ors (Unreported, McDougall J, 30 April 2010)
Philipps v Philipps (1878) 4 QBD 127
Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72
Ratcliffe v Evans [1892] 2 QB 524
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Texts Cited: Ritchie's Uniform Civil Procedure (online edn)
Category: Interlocutory applications
Parties: Dymocks Book Arcade Pty Ltd (Plaintiff)
Capral Ltd (formerly Alcan Australia Ltd) (First Defendant)
Peter Dalton Architects Pty Ltd (formerly Peter Dalton Pty Ltd) (Second Defendant)
Representation: Counsel
D Miller SC with D Moujalli (Plaintiff)
M Russell (First Defendant)
I Roberts SC (Second Defendant)
Solicitors
Norton Rose Australia (Plaintiff)
Colin Biggers & Paisley (First Defendant)
Kennedys Australia (Second Defendant)

File Number(s): 09/298893

Judgment

HER HONOUR: Before me for hearing on 18 November 2011 was an interlocutory application by the plaintiff (Dymocks)…

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 Dymocks Book Arcade Pty Ltd v Capral Ltd

Details

AGLC: Dymocks Book Arcade Pty Ltd v Capral Ltd [2011] NSWSC 1423
Case: [2011] NSWSC 1423
Decision Date: 23 November 2011

CaseChat Overview and Summary

Dymocks Book Arcade Pty Ltd sought leave to amend its summons and further amend its amended technology and construction list statement, pursuant to sections 64 and 65 of the Civil Procedure Act 2005 (NSW). The application was made in the context of proceedings against Capral Ltd. The plaintiff aimed to rectify certain deficiencies in its original summons, including issues related to the disclosure of documents and particulars, and to align the pleadings with the evidence that was anticipated to be presented during the trial. The primary focus of the dispute was whether the court should permit the plaintiff to amend its summons and statement to better reflect the evidence it intended to rely on and the procedural requirements of the case.

The court was required to decide whether the plaintiff's proposed amendments were justified under the circumstances, considering the principles of justice and the efficiency of the judicial process. The primary legal issue was whether the amendments would result in a fair trial and whether there were any substantial delays or prejudice to the defendant. Additionally, the court needed to assess whether the amendments were necessary to address the procedural issues identified in the original pleadings.

The court found that the amendments were necessary to ensure a fair trial and that there was no undue delay or prejudice to the defendant. The court held that the amendments would facilitate the disclosure of relevant documents and particulars, which were essential for the plaintiff to present its case effectively. The court noted that the plaintiff had acted promptly in seeking to rectify the deficiencies and that the amendments would not significantly alter the defendant's case or the overall scope of the litigation. Consequently, the court granted the plaintiff leave to amend its summons and further amend its amended technology and construction list statement, as requested.

Orders