HP Mercantile Pty Ltd v Clements - [2014] NSWSC 213

Supreme Court

New South Wales

Medium Neutral Citation: HP Mercantile Pty Ltd v Clements [2014] NSWSC 213
Hearing dates: 5 March 2014
Decision date: 06 March 2014
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
Orders made for defendant to have leave to file and serve a Fourth Further Amended Defence containing some but not all amendments sought. Defendant to pay costs thrown away by reason of amendment. Leave granted for defendant to make request that plaintiff calls a witness. Application for order to direct plaintiff to comply with request refused.

Catchwords: PROCEDURE - pleadings - amendment - where defendant seeks leave to file amended defence - where hearing is due to commence and there have been lengthy delays - whether leave for proposed amendments should be refused on case management grounds - whether plaintiff will suffer prejudice in addressing amendments.
EVIDENCE - request to call witnesses - application for order compelling plaintiff to call a witness under Evidence Act 1995 (NSW) ss 167, 169 - where plaintiff refused to comply with request - whether defendant should have leave to make request outside time limit - whether plaintiff's refusal to comply with request made without reasonable cause - matters to be considered in exercise of Court's discretion to order party to comply with request to call a witness.
Legislation Cited: - Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 64, 64(2)
- Evidence Act 1995 (NSW) ss 69(2), 135, 167, 168, 169(1), 169(1)(c), 169(4), 169(5)
- Trade Practices Act 1974 (Cth) s 51A
Cases Cited: - Australian Competition and Consumer Commission v Cabcharge Australia Ltd (No 2) [2010) FCA 837
- AON Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
- Deputy Commissioner of Taxation v Trimcoll Pty Limited [2005] NSWSC 1324
- Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307
- Iacullo v Iacullo [2013] NSWSC 1517
Category: Interlocutory applications
Parties: HP Mercantile Pty Ltd (Plaintiff)
Phillip Clements (Defendant)
Representation: Counsel:
P M Knowles (Plaintiff)
C R C Newlinds SC/A d'Arville (Defendant)
Solicitors:
Versace McKenzie Lawyers (Plaintiff)
Legal & Commercial Solutions (Defendant)

File Number(s): 2009/289202

Judgment

By a Notice of Motion dated 24 February 2014 the Defendant, Mr Clements, brings two applications, the first in relation to an amendment of his Defence in the proceedings and the second in relation to an application for a direction that the Plaintiff, HP Mercantile Pty Ltd ("HP Mercantile"), call a particular person, Mr Purcell, as a witness in its case. I will deal with those two applications in turn.

By the first aspect of the Notice of Motion, Mr Clements seeks leave to file a Fourth Further Amended Defence in the form exhibited to his affidavit dated 25 February 2014 with leave to the Plaintiff to file any amended reply. That application is made in circumstances that the hearing in the proceedings is due to commence on 11 March and continue for several days over the subsequent weeks,…

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: [2014] NSWSC 213
Decision Date: 06 March 2014

CaseChat Overview and Summary

The case of HP Mercantile Pty Ltd v Clements was heard in a court in New South Wales. The dispute was between HP Mercantile Pty Ltd, the plaintiff, and Clements, the defendant. The nature of the dispute involved an application for leave to amend the defendant's defence, and an application to compel the plaintiff to call a specific witness.

The court was required to decide whether the defendant should be granted leave to file an amended defence, despite the impending hearing date and the delays that had already occurred. The court also had to determine whether the plaintiff would suffer prejudice if the amendments were made. Additionally, the court needed to consider whether the defendant should be granted leave to call a witness outside the time limit, and whether the plaintiff's refusal to comply with the request was made without reasonable cause.

The court concluded that the defendant's application for leave to file an amended defence should be refused on case management grounds, as the hearing was due to commence and there had been lengthy delays. The court found that the plaintiff would suffer prejudice in addressing the amendments. Regarding the application to call a witness, the court determined that the defendant should have leave to make the request outside the time limit, and that the plaintiff's refusal to comply with the request was made without reasonable cause. The court exercised its discretion to order the plaintiff to call the requested witness.

The court ordered that the defendant's application for leave to amend the defence be refused. Furthermore, the court granted the defendant leave to call the requested witness outside the time limit, and ordered the plaintiff to comply with the request to call the witness.

Orders