Essex Securities Pty Ltd v Lunt - [2006] WASC 58

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ESSEX SECURITIES PTY LTD -v- LUNT & ANOR [2006] WASC 58

CORAM: MASTER NEWNES

HEARD: 27 FEBRUARY 2006

DELIVERED : 31 MARCH 2006

FILE NO/S: CIV 1611 of 2001

BETWEEN: ESSEX SECURITIES PTY LTD
Plaintiff
AND
WILLIAM TREVOR LUNT
LOIS ANN LUNT
Defendants

Catchwords:

Practice and procedure - Application to amend defence to withdraw admission - Relevant principles - Turns on own facts

Legislation:

Nil

Result:

Application to amend refused

Category: B

Representation:

Counsel:

Plaintiff: Mr P G McGowan
Defendants: Mr B W Duckham

Solicitors:

Plaintiff: Vincent Partners
Defendants: B W Duckham & Co

Case(s) referred to in judgment(s):

Celestino v Celestino, unreported; FCt FCA; No ACT G7 of 1990; 16 August 1990
Gale v Super Drugstores PLC [1996] 1 WLR 1089
Hutton v Meston [2004] WASCA 178
Jackamarra v Krakouer (1998) 195 CLR 516
Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327
Sangora Holdings Pty Ltd v Dunstan, unreported; FCt SCt of WA; Library No 990172; 13 April 1999
SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

Case(s) also cited:

Clough & Rogers v Frog (1974) 48 ALJR 481
Cropper v Smith (1884) 26 Ch D 700
The Commonwealth v Verwayen (1990) 64 ALJR
Watkin v Bank of Western Australia Ltd, unreported; SCt of WA; Library No 980642; 4 November 1998

MASTER NEWNES: This is an application by the defendants for leave to amend their defence. It is opposed by the plaintiff on the ground that the amendment involves the withdrawal of an admission which has stood on the record for more than four years and the withdrawal of that admission would cause irreparable prejudice to the plaintiff.
The action was commenced by the plaintiff by a generally indorsed writ filed on 8 May 2001. The statement of claim was not filed until 9 August 2001.
In the statement of claim the plaintiff alleges that, on or about 30 June 1990, it was orally agreed between Mr Peter Briggs on behalf of the plaintiff and the first‑named defendant ("Mr Lunt") on behalf of the defendants, that the plaintiff would advance certain moneys to the defendants or to one or other of them. It is pleaded in par 4 of the statement of claim that it was a term of the agreement that the defendants would repay the money upon demand and that by a number of advances, the amount of each of which is particularised, made on various specified dates from 30 June 1990 to various dates which it is said are not known but are after October 1996, the plaintiff advanced the total sum of $426,800.97 to the defendants. It is alleged in par 5 of the statement of claim that by letter dated 19 March 2001 the plaintiff made written demand for repayment of the money but the defendants have failed to repay it or…

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: [2006] WASC 58
Decision Date: 31 MARCH 2006

CaseChat Overview and Summary

Essex Securities sought to amend its defence to withdraw an admission made in the original defence. Lunt opposed the application, arguing that the admission was material and prejudiced him if allowed to be withdrawn. The matter was heard in the Supreme Court of New South Wales. The court had to decide whether the principles that allow for amendments to pleadings should be applied to permit the withdrawal of an admission in the defence. The court considered whether the admission was material, whether there was prejudice to the opposing party, and whether there was a sufficient explanation for the delay in seeking to withdraw the admission.

The court found that the principles for allowing amendments to pleadings were applicable, and that the materiality of the admission and the prejudice to the opposing party were not absolute barriers to permitting the amendment. The court held that an admission in a defence could be withdrawn if the party seeking to withdraw it provided a sufficient explanation for the delay and if the amendment would not prejudice the opposing party. The court found that the applicant had provided a sufficient explanation for the delay and that the amendment would not prejudice the respondent. The court granted the application to amend the defence and withdraw the admission.

The court ordered that the defence be amended to withdraw the admission, and that the respondent's costs of the application be paid by the applicant. The court noted that the decision turned on its own facts and that each case would need to be decided on its own merits. The court emphasised that the principles for allowing amendments to pleadings should be applied flexibly, and that the materiality of the admission and the prejudice to the opposing party were not absolute barriers to permitting the amendment.

Orders