For The Good Times Pty Ltd v Coltern Pty Ltd

[2007] NSWSC 108

CITATION:	For the Good Times Pty Ltd v Coltern Pty Ltd [2007] NSWSC 108
HEARING DATE(S):	12, 13, 14 February 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	14 February 2007
DECISION:	Seventh defendant granted leave to withdraw an admission by amending defence.
CATCHWORDS:	PROCEDURE [99]- Admissions- Formal admissions- Where amendment of defence necessitates withdrawal of an admission- No absolute right to withdraw- Leave to withdraw generally granted where an admission made in error unless the cause of undue prejudice- Deliberately erroneous admissions distinguished from admissions made in confusion.
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005, rule12.6
CASES CITED:	Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327 Maile v Rafiq [2005] NSWCA 410 Sirius Shipping Corporation v The Ship "Sunrise" [2006] NSWSC 164
PARTIES:	For the Good Times Pty Limited (P) Coltern Pty Limited (D1) ACN 079 357 243 Pty Limited (D2) Brasic Pty Limited (D3) Sokido Pty Limited (D4) Griffith Land Development Co Pty Limited (D5) Norman Clifford Boyle (D6) Richard Lee Woods (D7) Larry Owen Hanley (D8) Amdoll Holdings Pty Limited (D9)
FILE NUMBER(S):	SC 4835/04
COUNSEL:	R A Parsons (P) R McKeand SC (D7) D8 in person
SOLICITORS:	Summit Law (P) John F Morrissey & Co (D7) D8 in person

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 14 February 2007

4835/04 – FOR THE GOOD TIMES PTY LTD v COLTERN PTY LTD

JUDGMENT

1 HIS HONOUR: This is an application by the seventh defendant to amend his defence and there is no problem about that save and except the amendments directed to paragraphs 50 and 83 of the latest version of the statement of claim. If the defence was to be amended in those respects it would mean withdrawal of an admission. Under the Uniform Civil Procedure Rules 2005, rule 12.6, a party raising any matter in a defence may withdraw the matter at any time subject to sub rule 2, that a party may not withdraw any admission, with certain exceptions, without the consent of the other party or the leave of the court. That means that one has to pass to rule 17.2 and the learning that has grown up around that rule and its predecessor.

2 The leading authority is the decision of Rogers CJ Comm D in Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738, a decision which was applied by the full Federal Court in Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327. I also reviewed the authorities recently when sitting in Admiralty in Sirius Shipping Corporation v The Ship "Sunrise" [2006] NSWSC 164 at paras 5 and following.

3 As Mr McKeand SC, for the seventh defendant, has pointed out, the authorities that I have referred to, and the decision of the Court of Appeal in Maile v Rafiq [2005] NSWCA 410 are well summarised in the notes to Ritchies Uniform Civil Procedure NSW [17.2.5]. Essentially, the court is after the truth. The pleadings are the principal method of defining the issues to enable the court more easily to get to the truth. Thus, in principle, an erroneous admission should be able to be withdrawn unless other factors outweigh. The principal factor that might outweigh is that there is such great prejudice to the other party, because of the way in which that party has prepared his or her case on the basis of the admission, that the leave should not be given.

4 What I have just said is a gross over simplification and the cases show there has to be a distinction between an admission deliberately made, an admission which is key to the way in which the parties have prepared their case, and more peripheral facts. There must be some evidence as to how the admission was made and there must be some material to show that it was erroneous.

5 In the present case, having heard evidence on the voir dire, I accept that the admission was made in confusion and that I can not see how there was any prejudice to the plaintiff, because it is clear that all sides have had access to places where all copies of the relevant agreements might be found and that the production, or non-production, of documents signed by Mr Woods has now been exhausted. Mr Woods admitted earlier that he was a party to certain agreements, but now says he was under confusion. The question as to what agreements he signed or did not sign has been thoroughly canvassed in the evidence and I can not see sufficient prejudice on the other side to make me not give leave that the admissions be withdrawn.

6 If counsel for the plaintiff considers that he needs more time to deal with a particular issue, it may be that has to be granted. The question of costs will need to be reserved to be determined in due course. For the moment I give leave to amend the defence in accordance with the document which has been filed in court.

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