Frontier Assets Pty Limited v Fishburn - [2011] NSWSC 1298

Supreme Court

New South Wales

Medium Neutral Citation: Frontier Assets Pty Limited v Fishburn [2011] NSWSC 1298
Hearing dates: 27 September 2011
Decision date: 02 November 2011
Jurisdiction: Common Law
Before: Rothman J
Decision:
(i) The plaintiff has leave to file a fourth further amended statement of claim in the form relied upon during the course of the motion;
(ii) Costs of the motion be costs in the cause;
(iii) The plaintiff pay the defendants' costs thrown away by any amendment.

Catchwords: PRACTICE AND PROCEDURE - amendments to claim - hearing not yet fixed - no delay occasioned - balance right to plead with case management - amendment allowed
Legislation Cited: Civil Liability Act 2002
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Hadley v Baxendale (1854) 9 Ex 341
Iannello v Sharpe [2007] NSWCA 61
Mallick v Parish (1916) 16 SR (NSW) 305
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 849-850
Robinson v Harman (1848) 1 Exch 850 at 855; (1848) 154 ER 363
Category: Procedural and other rulings
Parties: Frontier Assets Pty Limited (plaintiff)
Michael George Fishburn (first defendant)
John James Watson (second defendant)
Christopher Martin O'Brien (third defendant)
Sam Couper (fourth defendant)
Stephen Campbell (fifth defendant)
Michael Bigelow (sixth defendant)
Tod Ritchie (seventh defendant)
Representation: Counsel
G P George (for the plaintiff)
D A Lloyd (for the first to seventh defendants)
Solicitors
Kalfus Legal (for the plaintiff)

File Number(s): 2008/00289361

Judgment

Frontier Assets Pty Limited (hereinafter "Frontier Assets") moves on notice dated 10 August 2011 to further amend its statement of claim. The defendants oppose the application.

Resolution of the issue depends fundamentally on the considerations of case management and justice mandated by the Civil Procedure Act 2005 (hereinafter "the Act") and in particular, ss 56, 57, 58 and 64.

The substantive proceedings involve an allegation of professional negligence against solicitors and counsel. Briefly stated, the professional negligence arises in connection with advice given and action taken concerning a failed real estate sale.

Substantive history alleged

Frontier Assets listed a property for sale and exchanged contracts with a purchaser for $7 million. The contract required a deposit of $700,000 but provided that $350,000 of the deposit (namely, 5 percent of the purchase price) was to be paid on the contract date and the balance of the deposit was payable on the earlier of the completion of the contract or the date of default by the purchaser: as per Iannello v Sharpe [2007] NSWCA 61.

The exchange of contract was complicated by an earlier option deed exercisable in particular circumstances and by a particular date. The date was subject to extensions. The purchase price nominated in the contract, on the evidence before the Court currently, was more probably than not greater than the value of the property.

On 10 July 2006, a corporate purchaser was nominated and…

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: [2011] NSWSC 1298
Decision Date: 02 November 2011

CaseChat Overview and Summary

The case before the Federal Court was between Frontier Assets Pty Limited and Fishburn. The plaintiff, Frontier Assets, sought to amend its claim against the defendant, Fishburn. The nature of the dispute was regarding the ability to amend a claim before the hearing had been fixed. The court had to determine whether the plaintiff's request for amendment would cause any delay or prejudice to the defendant and whether the plaintiff's right to plead should be balanced against the need for efficient case management.

The legal issue before the court was whether Frontier Assets was entitled to amend its claim before the hearing had been fixed, given that no delay or prejudice would result from such an amendment. The court considered the balance between the plaintiff's right to plead and the overarching principle of efficient case management. The court examined the circumstances of the case, including the stage of the proceedings and the extent to which the amendment would affect the defendant's ability to prepare for the hearing.

The court held that in the absence of any delay or prejudice to the defendant, Frontier Assets was entitled to amend its claim before the hearing had been fixed. The court emphasised the importance of balancing the plaintiff's right to plead with the overarching need for efficient case management. The court concluded that, in this case, the balance favoured allowing the amendment, as it would not cause any undue delay or prejudice to the defendant.

No final orders were made in this extract, as the case was still at the interlocutory stage. However, the court's decision allowed Frontier Assets to amend its claim, subject to the court's discretion and any further directions provided.

Orders