Evans v Singh & Ors (Ruling)

[2023] VSC 575

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2022 03152

SHARRON LEE EVANS	Plaintiff
v
BIRENDA KUMAR SINGH & ORS (according to schedule of parties)	Defendants

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JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September 2023
DATE OF RULING:	26 September 2023
CASE MAY BE CITED AS:	Evans v Singh & Ors (Ruling)
MEDIUM NEUTRAL CITATION:	[2023] VSC 575

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RULING – Application for adjournment of trial date – Where application was made on first day of trial – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Russell Moore	McNab & Starke
For the First Defendant	David Carlile	Kohli & Co Lawyers
For the Second and Third Defendants	Peter Caillard	Moray & Agnew

HER HONOUR:

1. On the first day of trial the plaintiff applied to adjourn this matter.

1. The trial involves a dispute between the plaintiff as vendor and the first defendant as purchaser of a home in Gisborne (the property). The plaintiff also sues the real estate agent as the second defendant and the principal of the agency as the third defendant.

1. The plaintiff alleges that the sales authority dated 4 May 2022 as produced by the agent is materially different to the document she in fact signed on that day. Pursuant to the sales authority the second and third defendants sold the property on 27 June 2022. A written offer for the property on 24 June 2022 was presented to the plaintiff. It is common ground that this offer was rejected but the dispute centres on what occurred next on 27 June 2022.

1. Ultimately, the first defendant’s written offer, with various handwritten amendments, bears the plaintiff’s and the first defendant’s signatures for a purchase price of $4 million (the contract of sale).

1. The plaintiff alleges that her signature was obtained by misrepresentation and that the handwritten amendments, notably the purchase price and special conditions, were unauthorised amendments, which were made only after the third defendant obtained her initials and signature on the contract of sale. The purchase price and special conditions were not in accordance with her authorisation to the agent. The second and third defendants contend that the plaintiff did give instructions to make a counter offer of $4 million and these were reflected in the handwritten amendments to the contract of sale.

1. Upon receipt of witness outlines in accordance with case management orders, the plaintiff began investigating the circumstances in which the first defendant signed the contract of sale and now, but not previously, takes issue with whether the signature on the contract is in fact that of the first defendant, and whether the first defendant was in Melbourne to sign the contract of sale as alleged.

1. Anticipating the conflicting evidence between what the parties said and did puts the credit of each witness central to the resolution of the dispute. The plaintiff submits that it is essential that she have an opportunity to obtain information to challenge the assertion that the first defendant was in Melbourne and signed the contract of sale, given contradictions that emerge from the witness outlines of the first defendant and third defendant.

1. All three defendants resist any adjournment. They submit that the plaintiff is seeking to conduct enquiries that should properly have been made in preparation for trial. Further they submit that the witness outlines are not in fact inconsistent and in any event any shortcoming is simply a level of detail as the outlines are not witness statements. As such the defendants submit that, if the outlines that are subject to challenge, they are challenged in cross-examination.

1. Separately, the first defendant made an application to file an amended defence and counterclaim. The proposed amendment raises a new pleading, in the alternative to the third defendant acting with the actual authority of the plaintiff, that the third defendant acted with ostensible or implied authority. The first defendant submits that as the proposed amendment is a legal question only, the plaintiff is not prejudiced by the late application to amend. The plaintiff resists amendments on the eve of the trial but concedes that with an opportunity to consider and obtain instructions, such opposition could not be maintained. The plaintiff submits that the legal issue raised will necessarily be premised on factual material about which instructions will be required.

1. The Civil Procedure Act 2010 (Vic) (Civil Procedure Act) is critical to the resolution of disputes about the management of litigation, including the vacation of trial dates. Resolving such disputes requires consideration of both the interests of all parties and the administration of justice more generally. Late applications for adjournment of trial disrupt not only parties who have prepared for trial and expended resources in presenting at court, but also judicial resources that have been allocated to the trial.

1. The overarching purpose of the Civil Procedure Act, as set out in s 7, requires the Court to facilitate dispute resolution by reference to four features: that it be just, efficient, timely and cost effective, and ensuring that resources are directed to the real issues in dispute.

1. The real issues in dispute in this case centre around the events of 27 June 2022 and the creation, amendment, and signing of the document described as the contract of sale. In this way the enquiries that the plaintiff now seeks to make are directed at key issues in dispute. In my view the interests of justice dictate that the plaintiff not be shut out from taking steps to enable her to challenge the circumstances of the creation of the document. While I accept the submission that the matters raised by the witness outlines, and the broad question of the circumstances in which the purchaser signed the document, by itself might be something that would not warrant an adjournment, the enquiries thus far have raised a question as to the veracity of the signature on this key document. In combination those two matters go to the heart of the plaintiff’s claim that the contract is unenforceable and the first defendant’s counterclaim for specific performance.

1. The plaintiff has acted promptly in steps taken thus far and anticipates concluding further steps by providing evidence by 9 November 2023, and amending any pleadings shortly after. Allowing for any responsive steps to be undertaken by the other parties, the matter could be ready for trial without lengthy delay and the Court will endeavour to relist the matter once the parties are ready.

1. All matters going to the just, timely, efficient and cost effective resolution of the dispute are to be balanced. The primary question in balancing all these considerations remains ‘what do the interests of justice dictate?’[1] In answering that question I am mindful that in Aon Risk Services Australia Ltd v Australian National University,[2] when considering an amendment to pleadings that would have the effect of creating a need for an adjournment, the Court said:

Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to the parties having sufficient opportunity to identify the issues they seek to agitate.[3]

[1]Ultra Thoroughbred Racing Pty Ltd trading as Baree Stud v Those Certain Underwriters at Lloyd’s London & Ors (Ruling) [2011] VSC 370.

[2](2009) 239 CLR 175.

[3]Ibid [112].

1. I accept the explanation for the late application to adjourn and am satisfied the plaintiff has acted promptly once deciding that further investigation was warranted. The plaintiff has identified the substance of the likely amendments but correctly says on the state of the information presently available to her she does not yet have a proper basis for that amendment. This position is also consistent with the plaintiff and her practitioners’ obligations under the Civil Procedure Act.

1. In those circumstances, the indulgence sought by the plaintiff was in my view one where she ought be accorded time for the opportunity to present the case she wished to agitate, if her investigations permit it. I granted the application and reserved the question of the defendants’ costs thrown away by reason of the adjournment. Consequentially, I adjourned the first defendant’s application to amend his pleadings until such time as the plaintiff indicates whether and how she proposes to amend her statement of claim. I have made other timetabling orders returning the matter for directions on 21 November 2023.

SCHEDULE OF PARTIES

BETWEEN:

SHARRON LEE EVANS	Plaintiff
- and -
BIRENDA KUMAR SINGH	First Defendant
BLUE CHIP REALTORS PTY LTD (ACN 649 095 358) AFT the Trustee of the Condor Unit Trust t/a Century 21 Paramount Realtors CS	Second Defendant
AMIT PANJETA (also known as ANDY PANJETA)	Third Defendant

FIRST COUNTERCLAIM:

BIRENDA KUMAR SINGH	Plaintiff by First Counterclaim
- and -
SHARRON LEE EVANS	Defendant by First Counterclaim

SECOND COUNTERCLAIM:

BLUE CHIP REALTORS PTY LTD (ACN 649 095 358) AFT the Trustee of the Condor Unit Trust t/a Century 21 Paramount Realtors CS	Plaintiff by Second Counterclaim
- and -
SHARRON LEE EVANS	Defendant by Second Counterclaim