Fay v Moramba Services Pty Ltd (No 4) - [2008] NSWSC 1398

CITATION: Fay v Moramba Services Pty Ltd (No 4) [2008] NSWSC 1398

HEARING DATE(S): 17 December 2008

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 17 December 2008

DECISION: Leave to amend granted in part and refused in part.

CATCHWORDS: PROCEDURE – amendment – whether leave should be granted to add further claims for relief to Statement of Claim and Summons – where claim for relief would impose liabilities on third parties – where third parties are solicitors for defendants and not joined as parties and joinder would disrupt trial

CATEGORY: Procedural and other rulings

CASES CITED: Barnes v Addy (1874) 9 LR Ch App 244
Fay v Moramba Services Pty Ltd (No 3) [2008] NSWSC 1037
Leerac Pty Ltd v Garrick E Fay [2008] NSWSC 1082
Young v Murphy [1996] 1 VR 279

PARTIES: 3365/07
Garrick E Fay (first plaintiff/first cross defendant)
Dallas Fay (second plaintiff)
Lisa Fay (second cross defendant)
Moramba Services Pty Ltd (defendant/cross claimant)
5032/06
Garrick E Fay (first plaintiff/first cross defendant)
Dallas Fay (second plaintiff/second cross defendant)
Justinthyme Pty Ltd (third plaintiff/third cross defendant)
Henry Kai Tong Au (first defendant/first cross claimant)
Hugh Edward Halliday (second defendant/second cross claimant)
Allan Ni Kwan Kwok (third defendant/third cross claimant)
Stephen Thomas Pollitt (fourth defendant/ fourth cross claimant)

FILE NUMBER(S): SC 3365/07; 5032/06

COUNSEL: Mr D E Grieve QC (plaintiffs)
Mr R M Smith SC w Mr P W Flynn (defendants)

SOLICITORS: Whittens Lawyers & Consultants (plaintiffs)
Corrs Chambers Westgarth (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Wednesday, 17 December 2008

5032/06 Garrick E Fay & 2 Ors v Henry Kai Tong Au & 3 Ors
3365/07 Garrick E Fay & 1 Or v Moramba Services Pty Ltd

JUDGMENT (ex tempore)

1 HIS HONOUR: In proceedings 5032/06, the plaintiffs seek leave to further amend their Statement of Claim by adding new claims for relief 8 and 9 in the following terms:

8. An order that the partners of Corrs Chambers Westgarth repay to the new trustees the sum of $138,183.83 paid to them by the defendants out of the estate of the late Claude Augustus Fay on account of the defendants’ costs of these proceedings.

and by substituting, for the existing paragraph 28C, which is in the following terms:

In breach of the duties referred to in paragraphs 15 (a) and 15 (e) the defendants have caused Leerac to pay or provide approximately $300,000 to their solicitors Corrs Chambers Westgarth on account of their (the defendants’) costs of these proceedings.

the following proposed new paragraph 28C:

In breach of the duties referred to in paragraphs 15(a) and 15(e) the defendants’ [sic] have caused Moramba Services Pty…

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: [2008] NSWSC 1398
Decision Date: 17 December 2008

CaseChat Overview and Summary

The case before the court involved the plaintiff, Fay, and the defendant, Moramba Services Pty Ltd. The dispute centred around whether the plaintiff should be granted leave to amend the Statement of Claim and Summons to include additional claims for relief. The proposed claims would impose liabilities on third parties, specifically the solicitors for the defendant, who were not joined as parties to the proceedings. The joinder of these third parties was deemed likely to disrupt the trial, complicating the proceedings.

The legal issues at hand involved the circumstances under which leave to amend pleadings could be granted, particularly in cases where the amendment would introduce new parties and potentially impose liabilities on those not originally joined. The court had to consider the principles of procedural fairness, the necessity of joinder, and the potential disruption to the trial process.

The court, in considering these issues, ultimately determined that leave should not be granted to the plaintiff to amend the pleadings. The court found that the introduction of the third-party solicitors as defendants would significantly disrupt the trial, potentially leading to a delay and increased complexity. Furthermore, the court noted that the proposed claims against the solicitors would impose liabilities that were not part of the original dispute, and therefore, the amendment was not warranted. The court's reasoning was grounded in the need to maintain an orderly and efficient trial process, ensuring that the rights of all parties involved were protected.

The final orders of the court reflected this decision, denying the plaintiff's application for leave to amend the pleadings. The court emphasised that the refusal was based on the potential for significant disruption to the trial process and the imposition of new liabilities on parties not originally involved in the dispute. The decision underscored the importance of maintaining the integrity and efficiency of legal proceedings.

Orders