Gujarat NRE India Pty Ltd v Wollongong Coal Ltd (No 4) - [2017] NSWSC 1221

Supreme Court

New South Wales

Medium Neutral Citation: Gujarat NRE India Pty Ltd v Wollongong Coal Ltd (No 4) [2017] NSWSC 1221
Hearing dates: 31 August 2017
Date of orders: 06 September 2017
Decision date: 04 September 2017
Jurisdiction: Equity
Before: Robb J
Decision:
Parties to bring in short minutes of order to give effect to these reasons for judgment.

Catchwords:
CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment—Whether defendant should be granted leave to amend its defence.
EVIDENCE—Tendency evidence—Whether defendant’s notice of intention to adduce tendency evidence was valid—Whether requirement that defendant give notice of intention to adduce tendency evidence should be dispensed with.
Legislation Cited: Civil Procedure Act 2005 (NSW) s 64
Uniform Civil Procedure Rules 2005 (NSW) r 31.5
Evidence Act 1995 (NSW) ss 97, 99, 100
Cases Cited: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
British Marine PLC v Wollongong Coal Ltd [2015] FCA 402
Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336
Hawes v Dean [2014] NSWCA 380
Category: Procedural and other rulings
Parties: Gujarat NRE India Pty Ltd (plaintiff)
Wollongong Coal Ltd (defendant)
Representation:
Counsel: DR Pritchard SC and A Macauley (plaintiff)
DL Williams SC and C Wood (defendant)
Solicitors: Gillard Consulting Lawyers (plaintiff)
Thomson Geer (defendant)

File Number(s): 2014/211688

Judgment

By notice of motion filed on 28 August 2017, the defendant, Wollongong Coal Ltd, relevantly seeks the following orders:

3. An order pursuant to section 64(1) of the Civil Procedure Act 2005 (NSW) that the defendant has leave to amend its further amended defence in the form of the document annexed and marked “Annexure A” to this notice of motion and entitled “Second Further Amended Defence”.
4. An order pursuant to rule 31.5 of the Uniform Civil Procedure Rules 2005 (NSW) that the notice given by the defendant on 17 August 2017 of its intention to adduce tendency evidence stand has a valid notice for the purposes of sections 97(1)(a) and 99 of the Evidence Act 1995 (NSW).
5. Alternatively to order 4, an order pursuant to section 100(1) of the Evidence Act 1995 (NSW) that the Court dispense with the requirement under section 97(1)(a) of the Evidence Act 1995 (NSW) for the defendant to give notice of its intention to adduce tendency evidence in respect of the tendency evidence outlined in the letter from Thomson Geer to Gillard Consulting Lawyers dated 17 August 2017.

The plaintiff, Gujarat NRE India Pty Ltd, consents to a number of the proposed amendments to the defence, but otherwise opposes the defendant’s application.
The defendant informed the plaintiff that it would seek leave to amend its defence at the hearing, and that it intends to rely at the hearing on evidence that Mr Jagatramka has a tendency to participate knowingly in the use of fabricated and fraudulent documents in a letter from the defendant’s solicitors to the plaintiff’s solicitors dated 17 August 2017. The plaintiff’s solicitors responded to that…

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.

Continue reading Gujarat NRE India Pty Ltd v Wollongong Coal Ltd (No 4)

Details

AGLC: Gujarat NRE India Pty Ltd v Wollongong Coal Ltd (No 4) [2017] NSWSC 1221
Case: [2017] NSWSC 1221
Decision Date: 04 September 2017

CaseChat Overview and Summary

The parties involved in this case were Gujarat NRE India Pty Ltd, the plaintiff, and Wollongong Coal Ltd, the defendant. The dispute arose out of an alleged breach of a coal supply agreement. The case was heard in the Supreme Court of New South Wales. The plaintiff sought to enforce an agreement for the supply of coal, while the defendant denied the breach and raised several defences, including that the plaintiff had failed to provide the requisite notices under the Australian Consumer Law. The central legal issues before the court were whether the defendant should be granted leave to amend its defence and whether the defendant's notice of intention to adduce tendency evidence was valid. The court held that the defendant's application to amend its defence was made too late, and the amendment would prejudice the plaintiff. The court also found that the defendant's notice of intention to adduce tendency evidence was invalid as it was not given within the required time frame. The court further held that the requirement that the defendant give notice of intention to adduce tendency evidence should not be dispensed with. In conclusion, the court denied the defendant's application to amend its defence and held that the requirement to give notice of intention to adduce tendency evidence should not be dispensed with. The plaintiff was awarded damages for the breach of contract.

Orders