Ghougassian v Sutherland - [2013] NSWCA 168

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ghougassian v Sutherland [2013] NSWCA 168
Hearing dates: 3 June 2013
Decision date: 11 June 2013
Before: Bathurst CJ at [1];
Meagher JA at [2];
Leeming JA at [28]
Decision:
(1) The time for the filing and serving of the notice of appeal be extended to 12 July 2012.
(2) St Gregory's Armenian School Inc (In Liq) be joined as second respondent in the appeal.
(3) Grant leave to the appellants to commence and prosecute the appeal against each of the respondents.
(4) Appeal dismissed.
(5) The first and second appellants pay the respondents' costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PROCEDURE - taking of account between mortgagor and mortgagees ordered pursuant to Uniform Civil Procedure Rules 2005, r 46.2 - dispute as to amount of principal and interest secured by mortgage - after hearing and delivery of reasons for judgment mortgagees sought to make claim for compound interest not included in statements of account delivered in accordance with r 46.5 - primary judge refused to allow claim on basis that mortgagor prejudiced because unable to raise arguable defence due to lateness of application - statement of account and notice of error defined issues and accordingly to be treated as equivalent to pleadings - no error in primary judge's formulation of relevant question as being one of amendment or in the exercise of discretion to reject claim
Legislation Cited: Corporations Act 2001 (Cth), s 471B
Uniform Civil Procedure Rules 2005, rr 46.2, 46.5, 46.6, 46.7, 51.8, 51.16
Cases Cited: Sutherland v Ghougassian [2012] NSWSC 125
Sutherland v Ghougassian (No. 3) [2012] NSWSC 334
Vartinians v St Gregory's Armenian School Inc [2011] NSWSC 406
Category: Principal judgment
Parties: Michael Ghougassian (First Appellant)
Daniel Ghougassian (Second Appellant)
Nareg Ltd (Third Appellant)
Roderick Mackay Sutherland (First Respondent)
St Gregory's Armenian School Inc (In Liq) (Second Respondent)
Representation: Counsel:
P E King (Appellants)
J K Taylor (First Respondent)
Solicitors:
Robert Balzola and Associates (Appellants)
Addisons (First Respondent)

File Number(s): 2012/158190
Decision under appeal

Jurisdiction:

9111

Citation:

Sutherland v Ghougassian (No 3)
[2012] NSWSC 334

Date of Decision:

2012-04-11 00:00:00

Before:

White J

File Number(s):

2010/66795
2011/10869

Judgment

BATHURST CJ: I agree with the orders proposed by Meagher JA and with his Honour's reasons.

MEAGHER JA: This is an appeal from orders of White J made on 11 April 2012 in a proceeding for the taking of an account between a mortgagor and its mortgagees. The mortgagees are the appellants, Mr Michael Ghougassian and Dr Daniel Ghougassian. The mortgagor is St Gregory's Armenian School Inc (In…

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: [2013] NSWCA 168
Decision Date: 11 June 2013

CaseChat Overview and Summary

In *Ghougassian v Sutherland*, the appellants, who were mortgagors, appealed a decision of the primary judge who had refused to allow the mortgagees to amend their claim for compound interest during an account of mortgage debts. The dispute arose after the primary judge had already delivered reasons for judgment, with the mortgagees seeking to introduce a claim for compound interest that had not been included in their earlier statements of account.

The central legal issue before the Court of Appeal was whether the primary judge erred in exercising their discretion to refuse the mortgagees' late application to amend their claim to include compound interest. This involved considering whether the statements of account and notice of error, delivered pursuant to Uniform Civil Procedure Rules 2005, r 46.5, should be treated as equivalent to pleadings and whether the mortgagors would be prejudiced by the late amendment.

The Court of Appeal held that the primary judge had not erred in formulating the relevant question as one of amendment or in the exercise of discretion. The court reasoned that the statement of account and notice of error effectively defined the issues in dispute, akin to pleadings. Allowing the amendment at such a late stage, after reasons for judgment had been delivered, would have prejudiced the mortgagors, who had prepared their case based on the accounts provided. Consequently, the appeal was dismissed.

Orders

Orders of the court

(1) The time for the filing and serving of the notice of appeal be extended to 12 July 2012.

(2) St Gregory's Armenian School Inc (In Liq) be joined as second respondent in the appeal.

(3) Grant leave to the appellants to commence and prosecute the appeal against each of the respondents.

(4) Appeal dismissed.

(5) The first and second appellants pay the respondents' costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ghougassian v Sutherland [2013] NSWCA 168
Hearing dates:	3 June 2013
Decision date:	11 June 2013
Before:	Bathurst CJ at [1]; Meagher JA at [2]; Leeming JA at [28]
Decision:	(1) The time for the filing and serving of the notice of appeal be extended to 12 July 2012. (2) St Gregory's Armenian School Inc (In Liq) be joined as second respondent in the appeal. (3) Grant leave to the appellants to commence and prosecute the appeal against each of the respondents. (4) Appeal dismissed. (5) The first and second appellants pay the respondents' costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - taking of account between mortgagor and mortgagees ordered pursuant to Uniform Civil Procedure Rules 2005, r 46.2 - dispute as to amount of principal and interest secured by mortgage - after hearing and delivery of reasons for judgment mortgagees sought to make claim for compound interest not included in statements of account delivered in accordance with r 46.5 - primary judge refused to allow claim on basis that mortgagor prejudiced because unable to raise arguable defence due to lateness of application - statement of account and notice of error defined issues and accordingly to be treated as equivalent to pleadings - no error in primary judge's formulation of relevant question as being one of amendment or in the exercise of discretion to reject claim
Legislation Cited:	Corporations Act 2001 (Cth), s 471B Uniform Civil Procedure Rules 2005, rr 46.2, 46.5, 46.6, 46.7, 51.8, 51.16
Cases Cited:	Sutherland v Ghougassian [2012] NSWSC 125 Sutherland v Ghougassian (No. 3) [2012] NSWSC 334 Vartinians v St Gregory's Armenian School Inc [2011] NSWSC 406
Category:	Principal judgment
Parties:	Michael Ghougassian (First Appellant) Daniel Ghougassian (Second Appellant) Nareg Ltd (Third Appellant) Roderick Mackay Sutherland (First Respondent) St Gregory's Armenian School Inc (In Liq) (Second Respondent)
Representation:	Counsel: P E King (Appellants) J K Taylor (First Respondent) Solicitors: Robert Balzola and Associates (Appellants) Addisons (First Respondent)
File Number(s):	2012/158190
Decision under appeal	Jurisdiction: 9111 Citation: Sutherland v Ghougassian (No 3) [2012] NSWSC 334 Date of Decision: 2012-04-11 00:00:00 Before: White J File Number(s): 2010/66795 2011/10869