IGA Distribution Pty Ltd v King and Taylor Pty Ltd

[2002] VSC 406

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 2068 of 2001

IGA DISTRIBUTION PTY LTD	Plaintiff
v
KING & TAYLOR PTY LTD	First Defendant
DELAHEY PROPERTIES PTY LTD	Second Defendant

---
RULING NO. 6

JUDGE:	Nettle J
WHERE HELD:	Melbourne
DATES OF HEARING:	12 September 2002
DATE OF RULING:	12 September 2002
CASE MAY BE CITED AS:	IGA Distribution Pty Ltd v King & Taylor Pty Ltd and anor
MEDIUM NEUTRAL CITATION:	[2002] VSC 406

---

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.M. Garratt QC with Mr M.K. Moshinsky	Cornwall Stodart
For the First Defendant	Mr J.D. Hammond QC with Ms J.E. Richards	Richard Szental
For the Second Defendant	Mr P.J. Hayes with Ms L. Hannon	Efron & Associates

HIS HONOUR:

1. Application has been made by Mr Hammond QC, on behalf of the firstnamed defendant, further to amend the firstnamed defendant’s defence and counterclaim:  to add an allegation that it was an implied term of the agreement for lease made between the plaintiff and the firstnamed defendant, that the firstnamed defendant would furnish to King & Taylor an estimate of total rent.

1. The allegation is that the term is to be implied in order to give business efficacy to the agreement and as a consequence of the terms of s. 83A of the Stamps Act 1958.

1. It is also sought to allege that the term was breached by the failure or refusal of the firstnamed defendant to provide the estimate in accordance with the term.

1. Mr Garratt does not oppose the amendment, provided it is clear that it is not sought by the firstnamed defendant to rely on facts other than those which are already the subject of the evidence or the proposed evidence contained in the witness statements that have been filed.

1. Mr Hammond has made plain that he wishes only to contend that the term which he would allege is one which is implied as a matter of law from the need to give business efficacy to the agreement or, as I would take it, a term of the Moorcock variety.

1. In those circumstances, and notwithstanding the lateness of the application, it seems to me that there is no prejudice which would be caused to the plaintiff and the secondnamed defendant has no interest in the matter.  According, I grant leave further to amend the firstnamed defendant’s defence and counterclaim by adding thereto the paragraphs 6B(a) and 7B(a) contained in the document handed up by Mr Hammond and I direct that a suitably amended and marked up further amended defence and counterclaim be filed and served post haste.

---