IGA Distribution Pty Ltd v King and Taylor Pty Ltd
[2002] VSC 402
•10 September 2002
| 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. 4
JUDGE: | Nettle J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 10 September 2002 | |
DATE OF RULING: | 10 September 2002 | |
CASE MAY BE CITED AS: | IGA Distribution Pty Ltd v King & Taylor Pty Ltd and anor | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 402 | |
---
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R.M. Garratt QC | Cornwall Stodart |
| For the First Defendant | Mr J.D. Hammond QC | Richard Szental |
| For the Second Defendant | Mr P.J. Hayes with Ms L. Hannon | Efron & Associates |
HIS HONOUR:
On this the sixth day of this trial, the first defendant makes application to amend the particulars under paragraphs 17(c) and 17(d) of its defence and counterclaim dated 24 August 2001 to include allegations that Mark and Antonio Assetta are not willing to give debt and interest guarantees in respect of any loan required by the first defendant to construct the proposed shopping centre the subject of this proceeding, because the cost of construction has increased but the rental has not.
It is also sought to allege as a particular of paragraph 17(c) that the actual construction was to be - which I take to mean that it was the intention of those that controlled the company that it be - carried out by Assettas Constructions (Vic) Pty Ltd, and that that company is now dormant and not willing to construct the shopping centre.
It is also sought to allege by way of new particulars under paragraph 17(d) that the cost of constructing the shopping centre has increased but the rental to be paid on the premises has not.
The application for leave to amend is opposed. It is submitted in opposition to the application that what is sought to be done by means of the new particulars is to advance an argument that the agreement the subject of the proceeding is not capable of specific performance because it would be futile to order a company which lacks the financial capacity to carry out the construction to undertake that work.
In the course of argument, Mr Hammond QC, who appears for the first defendant, has told me that the purpose of attempting to include the new particulars under paragraphs 17(c) and 17(d) is to have me draw an inference on the basis of the evidence to be given by the Assettas as to their unwillingness to provide security, and as to the cost increases and the static nature of the rent payable, that the company would lack the financial capacity necessary to undertake construction.
In the course of argument, it has also become plain that, for some time throughout interlocutory stages of this proceeding, discovery was sought by the plaintiff from the first defendant as to the financial capacity of the first defendant to carry out the construction and also as to the financial capacity of the Assettas, and for all I know perhaps of some of their other related entities, presumably in order to demonstrate that one way or another there would be financial capacity to complete the construction. That discovery was refused.
Mr Hammond has submitted that the position under these revised proposed particulars is now different for, whereas previously it was contemplated that it would be said that the company lacked financial capacity, not only because it itself lacked funds but also because the Assettas did so too, it is now sought to say only that the company itself lacks the capacity and that the Assettas are unwilling to provide it with that capacity.
It appears to me that if it is to be alleged that the first defendant lacks the financial capacity with which to construct the project if ordered to do so, it would only be fair and therefore necessary that full and complete discovery be provided to the plaintiff of all of the books and records of the first defendant relating to its financial capacity or which might lead the plaintiff on a path of enquiry which would enable it the better to impeach the allegation that the company lacks that capacity.
Given that we are now in the sixth day of trial, towards the end of lengthy cross-examinations of the two principal witnesses called for the plaintiff; that I have been told by Mr Hammond that even now he is unable to say what the scope of discovery would be if it were to be ordered; that, as a matter of logic, and experience and commonsense, I take it that it would require some effort and in all probability, or at least possibly, expert assistance to analyse the discovery of financial documents in order to reach a view as to their effect; and that the plaintiff may need to call further witnesses on its own part to demonstrate the case which it would seek to make concerning financial capacity, it is too late now to allow the amendment to occur.
It is possible, of course, to adjourn the further hearing of the trial but given the stage which we have now reached, that would be unfair - not only to the plaintiff but also to the second defendant. In my opinion it is too late and too much has occurred at this stage of the proceeding to allow an adjournment. Accordingly, I refuse the application for leave to include the new particulars under the proposed paragraphs 17(c) and 17(d) in Mr Hammond's document of 10 September 2002.
Mr Hammond has asked me to make plain that it was not part of his application that there be an adjournment of the trial. It should not be thought that I think anything other than what he says to me to be the case. The point I seek to make, however, and the principal reason for refusing the application is that because it is now the sixth day of trial it would be too difficult and too unfair to require the exercise of discovery to be undertaken on the run and for preparation to be conducted on that basis with which to meet the new allegations.
---
0
0
0