Hopkins, Ann v Seymour Softwoods Ltd

[1997] FCA 1301

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - application for leave to amend defence - whether leave should be granted.

ANN HOPKINS v SEYMOUR SOFTWOODS LIMITED, SINTOFF PTY LIMITED, BERREMA FINANCE PTY LIMITED and EQUUSCORP PTY LIMITED (formerly called EQUUS FINANCIAL SERVICES LIMITED)

NG 3039  of   1996

FOSTER J

11 NOVEMBER 1997

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 3039  of   1996

BETWEEN:

ANN HOPKINS
APPLICANT/CROSS RESPONDENT

AND:

SEYMOUR SOFTWOODS LIMITED
(Controller Appointed) (ACN 007 055 889)
FIRST RESPONDENT

SINTOFF PTY LIMITED
(Receiver Appointed) (ACN 006 621 487)
SECOND RESPONDENT

BERREMA FINANCE PTY LIMITED
(Receiver Appointed) (ACN 005 982 605)
THIRD RESPONDENT

EQUUSCORP PTY LIMITED (formerly called EQUUS FINANCIAL SERVICES LIMITED) (ACN 006 012 344)
FOURTH RESPONDENT/CROSS CLAIMANT

JUDGE:

FOSTER J

DATE OF ORDER:

11 NOVEMBER 1997

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The notice of motion be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 3039 of 1996

BETWEEN:

ANN HOPKINS
APPLICANT/CROSS RESPONDENT

AND:

SEYMOUR SOFTWOODS LIMITED
(Controller Appointed) (ACN 007 055 889)
FIRST RESPONDENT

SINTOFF PTY LIMITED
(Receiver Appointed) (ACN 006 621 487)
SECOND RESPONDENT

BERREMA FINANCE PTY LIMITED
(Receiver Appointed) (ACN 005 982 605)
THIRD RESPONDENT

EQUUSCORP PTY LIMITED (formerly called EQUUS FINANCIAL SERVICES LIMITED) (ACN 006 012 344)
FOURTH RESPONDENT/CROSS CLAIMANT

JUDGE:	FOSTER J
DATE:	11 NOVEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Extempore)

I have before me a notice of motion brought on behalf of the fourth respondent in these proceedings and filed on 27 October this year.  What is sought by the notice of motion is in effect leave to amend paragraphs 19 and 20 of the defence previously filed in these proceedings on 2 July 1997.  The amendments are contested on behalf of the applicant.

The history of this litigation has been explained to me and I do not propose to relate it in these short reasons.  The litigation is clearly complex.  In reaching this particular point it has gone through many interlocutory vicissitudes which have been referred to in the material placed before me. 

The particular paragraphs which are the subject of the application for amendment were pleaded in response to two paragraphs in the applicant's amended statement of claim, namely paragraph 73H and 73I.  Paragraph 73H alleges that a sum of $18,202, being part of a larger sum of $37,355 admitted as having been paid by the applicant as interest under the loan agreement referred to in the pleadings, was received by the fourth respondent.  Paragraph 73I makes allegations in respect of that sum, namely that in various ways it had been paid by the applicant by reason of mistakes which are then set out in the pleading.

The defence in paragraph 19 in respect of which amendment is sought admitted the truth of paragraph 73H of the statement of claim, namely the receipt by the fourth respondent of a sum of $18,202.  In respect of paragraph 73I various things were said as to an amount of $61,750 not having been advanced under the loan agreement and also as to certain performance and non-performance of certain work and services as to which I need say nothing further.

The amendments sought are set out in paragraphs 19 and 20 of the statement of defence sought to be filed in substitution should the motion be allowed.  By paragraph 19 the admission of the receipt of the $18,202 to which I have made reference is clearly withdrawn.  It is the wish of the fourth respondent to substitute an admission as to the receipt of only $822.33 with a denial of the receipt of anything in excess of that.  It wishes also to plead that that amount itself was forwarded to the receiver of the third respondent, Berrima Finance Pty Ltd.

It might be thought that the amendment is of no great significance in the overall picture of the case presented by the pleadings, but it is submitted on behalf of the applicant that it has come very late in the day in circumstances where the case has been set down for hearing against the background that expedition was sought because of the applicant's state of health.  It is, I consider, truly said that if it is allowed it presents difficulties.  The admission previously made resulted reasonably in no discovery being sought in relation to documents relevant to the admitted receipt of $18,202.  If that admission is withdrawn an area for further discovery may necessarily arise.  It is not easy to foresee, says the applicant, what that may lead to.  It may lead, of course, to a necessity for further pleading on its part.  It may lead to other areas of investigation which will necessarily involve delay and prejudice the disposal of the matter on the appointed hearing day.  These are submissions of some substance. 

Additionally, the material which is produced in support of the amendment is, in my view, most deficient.  It is largely based upon hearsay.  So far as there being any support for the factual allegations sought to be raised, that support is entirely lacking.  It is based on hearsay only.  I have allowed the material in but only on the question of providing some explanation of the delay in seeking the amendment of the defence.  It does not, however, in my view, adequately support the amendment which is sought and I refuse that amendment.  Accordingly, the amendment sought in the proposed paragraph 19 is refused.

So far as paragraph 20 is concerned, the amendment sought is in itself a rather curious pleading.  It appears to be pleaded in answer to what was averred in the statement of claim as being circumstances amounting to or occasioning mistakes on behalf of the applicant.  It does not make any allegations which involve the fourth respondent at all.  It appears to pick up statements made in an affidavit filed in the proceedings, in circumstances where leave itself would have to be granted for its filing, by one Carl Maitland Smith, the affidavit being sworn on 24 September 1997.  Paragraphs 27 to 30 of the affidavit appear to raise matters which are sought apparently to be raised by paragraph 20 in the amendment which is sought.  The nub of the allegation is that the trustee, who apparently had a role on behalf of investors in the plantation scheme which is the subject of this litigation, itself entered into an agreement with the respondents by which a variation was made on the applicant's loan agreement. 

It has been submitted on behalf of the applicant that if an amendment along these lines were allowed consideration would have to be given to whether the trustee itself should be joined as a respondent on the basis that an unauthorised amendment was made to the loan agreement.  If that course were to be taken it is quite clear that the hearing date would have to be abandoned.  The addition of a further party in this litigation, at this point of time, in the very vague circumstances in which it is sought to be introduced by this pleading, would necessarily involve a number of time-consuming interlocutory steps.  Those considerations in themselves militate heavily against allowing the amendment at this point of the litigation.  Apart from that, however, the basis upon which the amendment is sought is, as I have indicated, the paragraphs in Mr Smith's affidavit referred to.  Objection has been taken to those paragraphs, not only on the basis that leave would have to be granted for me to have regard to them but also on the basis that they are in a form which is quite unacceptable according to the laws of evidence.  They plainly are in such a form.  They assert agreements.  They provide no facts upon which those agreements could be said to be based.  I need say no more about them other than to state that, in my opinion, they simply cannot provide any basis for the application to amend in the manner that is sought in this notice of motion.  Accordingly, I reject also the amendment sought in paragraph 20 of the proposed new document.

The notice of motion is dismissed with costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:             11 November 1997

Counsel for the Applicant:	D.A.C. Robertson
Solicitor for the Applicant:	Thompson Eslick, Solicitors
Counsel for the Fourth Respondent:	J.E. Robson
Solicitor for the Fourth Respondent:	Michel Sillar
Date of Hearing:	11 November 1997
Date of Judgment:	11 November 1997