Infocus Tax and Business Advisory Pty Ltd v Andrews (No 2)

[2020] NSWSC 1072

Supreme Court

New South Wales

Medium Neutral Citation:

Infocus Tax and Business Advisory Pty Ltd v Andrews (No 2) [2020] NSWSC 1072

Hearing dates:

31 July 2020

Decision date:

14 August 2020

Jurisdiction:

Equity

Before:

Robb J

Decision:

See pars [73], [78], [82], [85], [86], [96] and [97]. Defendants should prepare draft short minutes of order to give effect to these reasons for judgment. They should then confer with the plaintiffs and either deliver agreed short minutes of order, or contending ones, to my Associate within seven days.

Catchwords:

CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment — although defendants have given conditional consent, the Court will not grant leave to file the draft amended pleadings in their present terms — where the Court is entitled to insist that any amendments that are permitted allege all material facts and give all necessary particulars

COSTS — Party/Party — Costs orders in interlocutory proceedings — where the plaintiffs must be ordered to pay the defendants’ costs of and occasioned by the amendment of the pleadings — where the Court should not order that those costs be paid forthwith — where the Court should not make gross sum costs orders

COSTS — Security for costs — Relevant factors — where, in the circumstances, the defendants are at least entitled to an order that requires the plaintiffs to increase the amount of the indemnity for costs by an appropriate amount

CIVIL PROCEDURE — Pleadings — Amendment — where, in the circumstances, it would not be appropriate for the Court to impose a condition on the amendment of pleadings that stipulates that the party seeking leave may not call a lawyer for the other party at the hearing

Legislation Cited:

Competition and Consumer Act 2010 (Cth)

Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60

Concrete Constructions Pty Ltd v Dalma Formwork Pty Ltd [1999] NSWCA 16

Hamod v New South Wales [2011] NSWCA 375

Infocus Tax and Business Advisory Pty Ltd v Andrews [2020] NSWSC 168

Knight Frank Australia Pty Ltd v Paley Properties Pty Ltd (2014) 120 SASR 532; [2014] SASFC 103

Showtime Touring Group Pty Ltd v Mosley Touring Inc [2013] NSWCA 53; (2013) 296 ALR 597

Texts Cited:

Ritchie’s Uniform Civil Procedure NSW (2005, Looseleaf, LexisNexis Butterworths)

Category:

Procedural and other rulings

Parties:

Infocus Tax & Business Advisory Pty Ltd (first plaintiff / applicant)
Announcer Group Pty Ltd (second plaintiff / applicant)
Benjamin William John Andrews (first defendant / first respondent)
Kimball John Andrews (second defendant / second respondent)
Veni Vidi Vixi Pty Ltd as trustee for the Imperium Trust (third defendant / third respondent)

Representation:

Counsel: P Lonergan (plaintiffs / applicants)
N Mirzai (first and third defendants / first and third respondents)
K Petch (second defendant / second respondent)

Solicitors: Reuben George Lawyers (plaintiffs / applicants)
Miller Prince (first and third defendants / first and third respondents)
JHK Legal (second defendant / second respondent)

File Number(s):

2019 / 301427

Judgment

1. On 3 March 2020, the Court published a provisional judgment after a hearing on a number of notices of motion filed by the defendants in these proceedings: Infocus Tax and Business Advisory Pty Ltd v Andrews [2020] NSWSC 168 (the provisional judgment).

The provisional judgment

2. These reasons will assume an understanding of the provisional judgment and will use the same abbreviations as that judgment.

3. The provisional judgment was concerned with two issues. First, on 18 October 2019, Mr Andrews Jr filed a notice of motion in which he sought an order for the determination of a separate question pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that is set out at [26] of the provisional judgment. In short, the separate question was whether the plaintiffs were precluded from prosecuting the claims in the statement of claim against Mr Andrews Jr by clause 12 of the sale agreement. That clause is set out at [10] of the provisional judgment.

4. If that question is answered favourably to Mr Andrews Jr, then he will be entitled to be released as a defendant in the proceedings.

5. Mr Andrews Sr, who has been separately represented, did not make an application for the determination of the same separate question insofar as clause 12 of the sale agreement applied to him. However, if an order for the separate question is made and determined in favour of Mr Andrews Jr, the result will be the same in respect of the plaintiffs' case against Mr Andrews Sr.

6. In their statement of claim, the plaintiffs anticipated the defendants' reliance upon clause 12 of the sale agreement, and alleged reasons why clause 12 could not be relied upon by Mr Andrews Jr and Mr Andrews Sr, or did not on its proper construction apply to the claims made by the plaintiffs. The plaintiffs also alleged that clause 12 was void or unenforceable by reason of s 18, s 237 and s 243(a) of the Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law). In essence, the plaintiffs alleged that they had been induced to enter into the sale agreement by the misleading and deceptive conduct of the defendants, and that exclusion clauses such as clause 12 were not effective if contained in contracts that had been induced by misleading and deceptive conduct.

7. The defendants' position was that the Court should make the order for the determination of the separate question, because, if Mr Andrews Jr and VVV succeeded on that question, Mr Andrews Jr and Mr Andrews Sr would be released from the proceedings and would not have to incur the costs of defending the proceedings.

8. The plaintiffs responded by arguing that the evidence relevant to their misleading and deceptive conduct claim would substantially overlap all of the evidence that would be called in the whole of the proceedings, in any event, so that little saving in cost and time would be realised by an order for the determination of the separate question.

9. In the event, I deferred determining the issue of whether there should be an order for the determination of the separate question until the close of the pleadings. At the time Mr Andrews Jr's and VVV’s notice of motion was heard, only the statement of claim had been filed.

10. As I explained at [32] of the provisional judgment, I did not think it was clear that all of the issues raised by the plaintiffs' misleading and deceptive conduct claim would need to be dealt with on the hearing of the separate question. That should depend upon the precise issues that arose out of all of the pleadings relevant to that claim. I had in mind the observations in Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 at [39] to the effect that it is not right to analyse the conduct that may be misleading and deceptive divorced from other circumstances, such as disclaimers and exclusion clauses, which might qualify the character of that conduct.

11. As I noted at [41] and [42] of the provisional judgment, the application for an order for the determination of the separate question in this case had the special feature that clause 12 of the sale agreement was a promise by the plaintiffs not to sue Mr Andrews Jr and Mr Andrews Sr for claims falling within the clause. On one view, the defendants may have a right to the enforceability of clause 12 being determined before the plaintiffs' claims against Mr Andrews Jr and Mr Andrews Sr. Otherwise, the defendants would entirely lose the benefit of clause 12, even if it was ultimately found to be enforceable.

12. The other issue dealt with in the provisional judgment involved a claim for security for costs made by Mr Andrews Jr and VVV by notice of motion filed on 18 October 2019 and by Mr Andrews Sr by notice of motion filed on 29 October 2019.

13. For the reasons explained in the provisional judgment, I decided at [65] that it would be sufficient for the time being for the defendants to be provided with security for their costs by a deed of indemnity granted by Infocus Wealth, the principal holding company of the group of companies that includes the plaintiffs. The amount of the indemnity was to be $140,000, and was to secure the defendants' costs up to the point where the Court decided whether or not to make the order for the determination of the separate question. Of the amount of $140,000, $40,000 was to cover each of Mr Andrews Jr and VVV, and $60,000 was to cover Mr Andrews Sr.

14. As I explained at [66]-[68] of the provisional judgment, if the Court made the order for the determination of the separate question, and if, following the completion of the pleadings, the Court could decide that question on a relatively narrow basis, then it may be appropriate for the Court to accept the continuation of the deed of indemnity by Infocus Wealth as adequate security, albeit after amendment to secure an appropriate additional amount. On the other hand, if the plaintiffs pleaded their misleading and deceptive conduct challenge to the validity of clause 12 on a basis that widened the scope of that issue to include much of the evidence that would be led at the final hearing, that may change the equation and require the Court to make a standard form of order for security by payment of money into court or by the provision of a bank guarantee.

15. That is why the first judgment was provisional, as it left both the question of the making of an order for the determination of the separate question and the decision as to the appropriate form of security to be provided by the plaintiffs for later determination after the completion of the pleadings.

Plaintiffs’ application for leave to amend their pleadings

16. The Court gave directions for the filing of pleadings, which led to the filing of defences by the defendants, replies by the plaintiffs, cross claims by the defendants, defences to the cross claims by the plaintiffs, and replies by the defendants to the plaintiffs' defences to the cross claims.

17. Then, on 22 July 2020, the plaintiffs filed a notice of motion in which they sought leave to file an amended statement of claim and amended defences to the cross claims filed by the defendants. It appears that the plaintiffs also now want leave to amend their replies to the defendants’ defences.

18. One result of this action by the plaintiffs is that, if the leave sought is given by the Court, it will be necessary for all of the parties to engage in another round of pleadings in response to the plaintiffs' amended pleadings. As the logic in the provisional judgment as to why the determination of the issues considered in that judgment should be deferred until after the close of the pleadings has not changed, the determination of those matters will again be deferred until the pleadings have ultimately closed.

19. In these circumstances, the parties agreed that the question for present determination is whether the plaintiffs should be given the leave that they have sought, and if so, on what terms.

20. The defendants consented to the plaintiffs being given leave to amend, but only on the following terms.

21. First, all of the defendants say that the leave should be granted on condition that the plaintiffs are ordered to pay the defendants' costs thrown away as a result of the amendments in amounts determined now on a gross sum basis payable forthwith.

22. In addition, Mr Andrews Jr and VVV say that the leave to amend should be given to the plaintiffs on condition that they will not call the barrister who has been briefed as counsel for those defendants as a witness at any hearing in these proceedings.

Some features of the pleadings and proposed amendments

23. Before I consider the question of the order for costs that should be made against the plaintiffs, and whether leave should be conditional upon the plaintiffs not calling counsel as a witness at the hearing, it will be convenient to explain a number of features of the existing pleadings, and the amendments proposed to be made by the plaintiffs in their amended pleadings. That is because the issues that arise in relation to whether the separate question should be ordered to be determined, whether security for costs should be ordered and if so in what form, and whether the Court can and should impose a condition related to the calling of counsel as a witness, are all intertwined.

24. In their statement of claim, the plaintiffs pleaded the reasons why clause 12 of the sale agreement could not be enforced by Mr Andrews Jr and Mr Andrews Sr in pars 35 to 38. In essence, those reasons were that those gentlemen were not parties to the sale agreement, and they did not personally provide consideration for the promises made in clause 12. Further, the plaintiffs alleged that, on its proper construction, clause 12 did not apply to breaches of an employment contract or of fiduciary duties.

25. By proposed pars 37A and 37B of the draft amended statement of claim, the plaintiffs wish to plead that Infocus did not validly execute, and is not a party to, the sale agreement, so that Infocus is not bound by clause 12 of the sale agreement.

26. The particulars given for those proposed allegations repeat proposed par 12 of the statement of claim. That paragraph only alleges that Mr Andrews Sr was a director and officer of Infocus from 24 April 2019 until after the sale agreement was purportedly executed by Infocus on 1 July 2019, and that another individual, Rajesh Daji, was the company secretary of Infocus for that period.

27. The reason why the facts alleged in proposed par 12 have the consequence that Infocus is not a party to the sale agreement is not explained in the draft pleading.

28. If, in fact, Infocus is not a party to the sale agreement, then it should be entitled to maintain its claims in the statement of claim against Mr Andrews Jr and Mr Andrews Sr without being impeded by clause 12.

29. On the other hand, if the plaintiffs are given leave to introduce this new issue, then that creates an additional candidate for determination as a separate question. It appears that the issue of whether Infocus is bound by clause 12 is a narrow one.

30. Although the draft amended statement of claim contains a number of proposed amendments to the pleading, the only substantial new claim is as follows:

1. It was a material term of the Sale Agreement that VVV would not, and would ensure that its affiliates such as Ben Andrews would not, for a period of up to 12 months after the Sale Agreement was entered into, solicit, canvas or secure the custom of Infocus clients.

Particulars

Sale Agreement clause 10

1. By reason of the matter pleaded in [18]-[19] above VVV is in breach of the Sale Agreement and the Plaintiffs suffered and continue to suffer loss and damage.

   31. Infocus will not, of course, be able to maintain its claim against VVV if it succeeds in establishing that it was not a party to the sale agreement.

   32. As Infocus was the operating company, it will have been the plaintiff that suffered a direct loss as a result of any reduction in its clientele as a result of breaches of clause 10 of the sale agreement by VVV. Announcer would only have suffered a reflective loss measured by reference to a diminution in the value of Infocus or a reduction in the value of dividends that Infocus would be able to declare in favour of Announcer.

   33. Thus, the issue of whether Infocus is a party to the sale agreement will affect the way that the plaintiffs' claim against VVV for breach of clause 10 of the sale agreement will be conducted on the issue of how the damages are to be quantified. If Infocus is found to be a party to the sale agreement, then it will be the plaintiff that will be entitled to damages for breach of clause 10 by VVV. Once Infocus receives those damages, Announcer may further not suffer any loss. However, if Announcer is the only plaintiff who is a party to the sale agreement, then the damages may be calculated in a different way.

   34. That is yet another reason for the Court to add the question raised by pars 37A and 37B of the draft amended statement of claim to the issues to be determined separately and before the other issues in the proceedings.

   35. For completeness, clause 10 of the sale agreement relevantly provides:

10.1   On and from the Completion Date, the Seller must not, and must ensure that each of its Affiliates does not, during the Restraint period:

(a)   solicit, canvas or secure the custom of a person who is at the Completion Date a client of the Company; or …

36. Paragraphs 18 and 19 of the existing statement of claim plead, in substance, that Mr Andrews Jr, between April and July 2019, solicited existing clients of Infocus, and, between June 2019 and late July 2019, Mr Andrews Jr transferred some or all of the lost clients to an entity other than Infocus for his personal benefit.

37. As the sale agreement was entered into and completed on 1 July 2019, only events referred to in pars 18 and 19 that took place after 1 July 2019 would be capable of constituting breaches by VVV of clause 10 of the sale agreement.

Effect of amendment on retention of counsel’s brief

38. This is a convenient place to introduce the explanation of why Mr Andrews Jr and VVV asked the Court to make it a condition of the plaintiffs being granted leave to amend their pleadings that they do not call their counsel to give evidence for the plaintiffs in the proceedings.

39. The difficulty arises out of the fact that, as it happens, counsel was a client of Infocus and at some stage he transferred his business to a company alleged to have been associated with Mr Andrews Jr.

40. This problem will only arise if the plaintiffs are given leave to add their claim for breach of clause 10 by VVV to the proceedings. Until the plaintiffs foreshadowed their application for leave to amend their pleadings, there was no reason why counsel should not have accepted a brief from Mr Andrews Jr and VVV.

41. The plaintiffs' solicitors raised this issue in a letter to the solicitors for Mr Andrews Jr and VVV dated 1 July 2020. In that letter, they put those defendants and counsel on notice that they will consider calling counsel as a witness in the case at an appropriate time, and that they expect counsel will be in a position to give evidence on the issue of whether Mr Andrews Jr solicited clients of Infocus. They referred to rule 101(d) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (Barristers Rules) and said: "We bring the above matters to your attention as a professional courtesy".

42. This sabre-rattling on behalf of the plaintiffs led to a response from the solicitors for Mr Andrews Jr and VVV dated 2 July 2020. That letter proceeded on what may be the false basis of an assumption that, at some time, the plaintiffs would seek an order from the Court precluding counsel from acting for their clients. The letter sought confirmation whether the plaintiffs would make such an application by 9 July 2020.

43. The plaintiffs' solicitor's response on 13 July 2020 was to observe that the plaintiffs had not stated an intention to call counsel as a witness, but merely that they would "consider" calling counsel “as a witness in the case at an appropriate time". They suggested that "it is premature for our clients to determine who they will require as witnesses in the case", and finished by saying that they did not "intend to engage with your office further" in relation to the matter.

44. Now counsel has the problem encapsulated by rule 101(d) of the Barristers Rules, which obliges a barrister to return a brief to appear before a court if the barrister has reasonable grounds to believe that the barrister may, as a real possibility, be a witness in the case.

45. As the plaintiffs have already threatened to call counsel as a witness, he may now have no choice but to return his brief. Counsel advised the Court at a directions hearing in relation to the plaintiffs' application for leave to amend their pleadings that took place on 31 July 2020 that he would, in fact, feel obliged to return his brief if the plaintiffs were given the leave to amend their statement of claim on a basis that did not preclude them from calling counsel as a witness.

38. On any view, that will be an unfortunate outcome for Mr Andrews Jr and VVV, as they have already incurred counsel’s costs, and have reposed their faith in him and have structured their response to the plaintiffs' claims on the basis of counsel’s advice. Matters are made worse by the fact that the Court remains part heard on the original motions.

39. This issue is related to the security for costs issue. If counsel is required to return his brief, then a considerable proportion of the fees that he has rendered will be required to be duplicated by new counsel when reading into the matter.

40. Furthermore, the issue raises another reason for the Court to make an order for the determination of the separate question that has already been sought by Mr Andrews Jr and VVV, added to the question of whether Infocus is a party to the sale agreement. The reason is that counsel’s professional difficulty only arises out of the new claim against VVV for breach of clause 10 of the sale agreement, and will not cause embarrassment to counsel if he retains his brief to appear on the hearing of the separate question on behalf of Mr Andrews Jr and VVV.

41. Of course, it will be a matter for counsel and his clients as to whether it is in their interests for counsel to be replaced as the barrister holding the brief for Mr Andrews Jr and VVV immediately.

Pleading of misleading and deceptive conduct claim

50. I will return now to a consideration of the statement of claim and the proposed amended statement of claim.

51. The final matter to note is that the plaintiffs have not sought leave to amend pars 43 to 52 of the statement of claim, which are the paragraphs in which they allege that clause 12 of the sale agreement should be declared void, void ab initio or unenforceable by the defendants for misleading and deceptive conduct. (For completeness, I note that this claim also relates to clauses 7.5 and 7.6 of the sale agreement, which place limitations on the nature and amount of the damages recoverable by the plaintiffs for breach of the sale agreement).

52. Thus, the plaintiffs have not responded to the observations made in the provisional judgment at [37], to the effect that the issue of whether misleading and deceptive conduct prevents a party to a contract from relying upon an exclusion clause may be a sophisticated one, and depend upon whether the misleading and deceptive conduct is sufficiently related to the inclusion of the exclusion clause in the contract to justify an order that the exclusion clause not have effect. That position appears to be confirmed by the plaintiffs' written submissions. That is, the statutory provisions that prohibit misleading and deceptive conduct were enacted for the benefit of consumers, and that provisions in contracts that purport to exclude liability for misleading and deceptive conduct will uniformly be ineffective.

53. I will return to this issue in more detail below. For the present, it is to be noted that the consequences of the plaintiffs deciding not to refine their allegations as to why clause 12 is not effective is that they will lead all of the evidence in their misleading and deceptive conduct claim at the hearing of any separate question for the determination of whether clause 12 prevents the plaintiffs from prosecuting the claims against Mr Andrews Jr and Mr Andrews Sr.

Some features of the other pleadings

54. It will now be appropriate to make some observations concerning the significance of the other pleadings that have been filed in response to the plaintiffs' original statement of claim.

55. The most significant matter is that, by its defence and its cross claim, VVV seeks an order for the specific performance by the plaintiffs of clause 12 of the sale agreement.

56. That claim changes the complexion of the issues raised by clause 12 of the statement of claim in relation to whether they should be dealt with first before the balance of the issues raised by the plaintiffs' statement of claim.

57. First, it is logical that VVV's proceedings to enforce clause 12 be dealt with before the claims made in the plaintiffs' statement of claim, because otherwise VVV will be deprived of the fruits of its victory if it succeeds.

58. Secondly, the fact that VVV is seeking to enforce clause 12 may have a consequence for the determination of the defendants' applications for security for costs.

59. Usually, where a plaintiff introduces defensively a claim that the defendant does not have a particular right, and then the defendant cross claims to enforce that right, the plaintiff is not ordered to provide security for costs: see Concrete Constructions Pty Ltd v Dalma Formwork Pty Ltd [1999] NSWCA 16 at [15].

60. That consideration may have the effect of reducing the quantum of the security for costs that the plaintiffs would otherwise be ordered to pay in respect of the determination of a separate question, but the plaintiffs may still be ordered to provide some security if they insist on introducing all of the evidence on their misleading and deceptive conduct claim on the separate question.

61. Mr Andrews Jr and Mr Andrews Sr also seek to enforce clause 12 on a personal basis, by relying upon estoppels. Those claims will not introduce significant factual complexity into the proceedings, and need not be further considered at this time.

62. An additional matter of significance arises out of the plaintiffs' replies to the defences and in their defences to the cross claims filed by the defendants in response to the allegation by the defendants that both Infocus and Announcer executed the share sale agreement. Unfortunately, because of the multiplicity of pleadings, the discussion of this issue is unavoidably somewhat opaque.

63. The plaintiffs, in their later pleadings, pleaded the reasons why they claim that Infocus is not a party to the sale agreement in somewhat more detail than is found in the particulars of the equivalent claim in the draft amended statement of claim. In short, the new point proposed to be pleaded was that Mr Andrews Sr ceased to be a director of Infocus on 24 June 2019, before he purported to execute the sale agreement as a director of Infocus on 1 July 2019. The reason why the plaintiffs allege that Mr Andrews Snr prematurely ceased to be a director is obscure, but it appears to be alleged to have occurred because of terms in the constitution of Infocus.

64. In the defendants’ replies to the plaintiffs’ defences to their cross claims, they pleaded reasons why the plaintiffs are not permitted to allege that Mr Andrews Sr was not a director of Infocus when he executed the sale agreement on behalf of Infocus. Those reasons included that the plaintiffs had pleaded in the statement of claim that Mr Andrews Sr was a director of Infocus at the relevant time, and they had not been released from that admission, and further that authorised representatives of Infocus had given Mr Andrews Sr the authority to execute the sale agreement on behalf of Infocus.

65. The result of that response by the defendants in their replies appears to be that the plaintiffs have sought further leave to file amended defences to the defendants’ cross claims and amended replies to the defendants’ defences. Among other things, those draft pleadings delete that part of the plaintiffs’ claim that Infocus was not a party to the sale agreement because Mr Andrews Sr was not a director of Infocus when he purported to execute the share sale agreement on its behalf.

66. The forensic consequence of all this is that the reason given in the draft amended statement of claim for Infocus not being a party to the sale agreement remains obscure, as the plaintiffs have abandoned the explanation that they added in their replies and defences to cross claims.

67. The best source for discerning the basis of Infocus' claim that it was not bound by the sale agreement is pars 15 and 16 of the plaintiffs’ written submissions dated 10 July 2020. In par 15, there is a reference to Knight Frank Australia Pty Ltd v Paley Properties Pty Ltd (2014) 120 SASR 532; [2014] SASFC 103 at [94], where the Court observed that, when a director of a company had signed the relevant document, the director was not purporting to act as an agent for the company. Instead, he was undertaking one half of the execution of the contract by the company itself, which was incomplete because the execution clause was not countersigned, as required by the execution clause itself, by a second director or secretary.

68. The argument is put in par 16 that Infocus did not validly execute the sale agreement because the company secretary did not execute it. The argument was specifically put in the following terms:

… The Plaintiffs submit that in time order (i) [Mr Andrews Sr] executed the [sale agreement] at a time when he was not sole director, (ii) representations were made by [Mr Andrews Jr] that [the secretary] would be removed as company secretary and [Mr Andrews Sr] would then re-execute as sole director, (iii) [the secretary] was then purportedly removed as company secretary, (iv) [Mr Andrews Jr] executed the [sale agreement] for VVV but [Mr Andrews Sr] never re-executed the [sale agreement] as sole director of Infocus. Accordingly, it is contended that Infocus was not a party to the [sale agreement].

69. The only comment that need be made about this argument at this time is that it is not pleaded or the subject of particulars in the draft amended statement of claim, the draft amended defences to the cross claims, or the draft amended replies.

70. In some ways many of the observations that have been made above only form the background to the matters that need to be decided at this time. I have recorded them in order to assist the Court in deciding the interlocutory applications that remain outstanding when the time comes to do so, and in an attempt to impose some order on the evolving nature of these proceedings.

71. I now turn to the question of whether leave should be given to the plaintiffs to file their draft amended pleadings.

Grant of leave to amend

72. As I have noted above, the defendants have not objected to leave being granted, although they submit that the leave should only be given on the conditions that I have identified.

73. Notwithstanding the conditional consent given by the defendants, I will not grant the plaintiffs leave to file the draft amended pleadings in their present terms. I do so on my own motion, for the reason that, as the amendments are sought to be made when the Court is part heard on the defendants notices of motion, the Court is entitled to insist that any amendments that are permitted allege all material facts and give all necessary particulars. Detail and precision are required in order to give the Court a proper basis for deciding the outstanding interlocutory questions.

74. I have already explained that I do not consider that proposed pars 37A or 37B adequately plead the basis of a claim that Infocus did not validly execute the sale agreement.

75. It is not clear to me that the explanation given by the plaintiffs in their written submissions is sufficient, but whether or not it is, it must be alleged in any amended pleadings for which leave is given.

76. I am not satisfied that proposed par 54 of the amended statement of claim is adequately pleaded insofar as it simply repeats the matters pleaded at pars 18 and 19. As mentioned above, those paragraphs contain broad allegations of conduct by Mr Andrews Jr between April and late July 2019. As also mentioned above, only actions taken by Mr Andrews Jr after 1 July 2019 could constitute breaches by VVV of clause 10 of the sale agreement.

Order for costs of the amendment of the pleadings

77. I now turn to the issue of the costs order that should be made as a condition of the plaintiffs ultimately being given leave to amend their pleadings.

78. It is clear that, at least, the plaintiffs must be ordered to pay the defendants' costs of and occasioned by the amendment of the pleadings.

79. The principal changes made by the amendments will be those that I have noted above, being the claim that Infocus is not a party to the sale agreement and the claim for breach by VVV of clause 10 of the sale agreement.

80. The plaintiffs did not allege in their statement of claim that Infocus was a party to the sale agreement. They alleged in par 7 that Announcer entered into that agreement. Their claim that Infocus was not a party to the sale agreement is new, and is primarily a response to VVV's claim in its cross claim for an order for specific performance against Infocus to enforce clause 12.

81. Consequently, the claim that Infocus is not a party to the sale agreement is a new one. It is also clear that the claim to enforce clause 10 of the sale agreement is a new claim.

82. I do not accept that there is any basis for the Court to make an order that the plaintiffs pay the costs of the amendments whereby they have introduced the new claims into the proceedings forthwith.

83. In saying this, I note that counsel for Mr Andrews Snr made the point in oral submissions on 31 July 2020 that the plaintiffs initially pleaded in their replies and defences to cross claims that Infocus was not bound by the sale agreement because Mr Andrews Snr was not a director of Infocus on 1 July 2019, and they will abandon that claim by their amended pleadings. That is true, but I do not accept that this relatively minor retreat by the plaintiffs should be considered in the same light as would be the abandonment by the plaintiffs of a cause of action alleged in their original statement of claim.

84. The circumstances in which the Court makes 'forthwith' costs orders are dealt with in UCPR r 42.7(2), which provides: “Unless the Court orders otherwise, [the costs of interlocutory applications] do not become payable until the conclusion of the proceedings”. There is no limitation restricting the exercise of the Court’s power to ‘order otherwise’: see Showtime Touring Group Pty Ltd v Mosley Touring Inc [2013] NSWCA 53; (2013) 296 ALR 597 at [29], [33] and [34]. However, the authorities provide guidance as to when it is appropriate for the Court to order that an unsuccessful party pay the costs of an interlocutory step in the proceedings forthwith. In my experience, it is not usual for a plaintiff to be ordered to pay the costs of an application for leave to amend its pleadings forthwith in circumstances where, in substance, new claims are added, as well as minor amendments made: see the examples in Ritchie’s Uniform Civil Procedure NSW (2005, Looseleaf, LexisNexis Butterworths) at [42.7.20].

85. I also reject the defendants' submissions that the Court should make gross sum costs orders at this stage of the proceedings. I see no reason why the time of the Court should be engaged in this exercise, and I see nothing special in this matter that justifies any course other than that the costs be assessed in the conventional way at the appropriate time. The assessment of costs in this instance should not be a complex exercise. There is no reason to think that the plaintiffs will not participate in the assessment process conscientiously. Any question about the capacity of the plaintiffs to meet a costs order when ultimately assessed can be dealt with adequately in the context of the application for security for costs. See Hamod v New South Wales [2011] NSWCA 375 at [813]-[820].

Increase in the indemnity as security for costs

86. It is clear, however, that the defendants are at least entitled to an order that requires Infocus Wealth to enter into a deed of amendment under which it agrees to increase the amount of the indemnity for any costs that are ordered to be paid by the plaintiffs by an appropriate amount to cover the costs order that will be made as a condition to leave being given to the plaintiffs to amend their pleadings.

87. It appeared to me, from reading the affidavits of the defendants' solicitors as to the quantum of the expected additional costs, that the amounts involved were reasonable. However, the Court has not heard argument on that subject.

88. If the parties cannot agree as to an appropriate amount to be provided for in the amended deed of indemnity, then they will have to agree case management orders for the purpose of allowing the Court to determine the additional amount quickly. That should involve the defendants sending to my associate and the plaintiffs by email a schedule that clearly identifies the additional amounts sought with a clear explanation of how those amounts arise. The plaintiffs should then be required to respond within days. The amount for the additional security by way of indemnity should include the costs of the defendants of the application for leave to amend and the costs of and occasioned by the amendments, including the defendants' costs of completing the pleadings.

89. This regime will only deal with the issue of security for costs up to the time when the Court decides whether to make an order for the determination of separate questions.

90. I note that the plaintiffs' chief financial officer, by affidavit made on 10 July 2020, has provided additional evidence concerning the financial position and accounting arrangements of Infocus Wealth and the plaintiffs. The defendants have not yet had an opportunity to respond to that evidence.

91. The case management orders that the parties propose for the further conduct of these proceedings should deal with the defendants' entitlement to respond to that evidence, and to make submissions concerning its significance to the issue of the security for costs of the proceedings.

92. The plaintiffs' application for leave to amend their pleadings causes me to make the following preliminary observations on the security for costs issue. So long as the plaintiffs do not have the independent financial capacity to meet any costs order that may be made against them in favour of the defendants, the defendants will in principle be entitled to an order for security for their costs. An exception may be in respect of VVV's costs of getting an order for the specific performance of clause 12 of the sale agreement, assuming that is determined as a separate question. The defendants would be entitled to security for their costs of the determination of the issue whether Infocus was a party to the sale agreement, whether clause 12 was void or unenforceable because of misleading and deceptive conduct, and the balance of the substantive claims made by the plaintiffs.

93. The provision of security for costs in the form of a deed of indemnity entered into by Infocus Wealth in favour of the defendants has the disadvantage that it requires relatively constant attention to the overall financial position of the Infocus Wealth group. The effectiveness of the security would be susceptible to variations in the financial fortunes of the group. The provision of security for costs in the conventional way would not have that disadvantage.

94. The sense that I gained from reading the affidavit of Infocus Wealth's chief financial officer is that the financial position of the group is improving. If so, that militates in favour of the requirement that the plaintiffs provide security for the defendants' costs in a more conventional way.

Entitlement of plaintiffs to call counsel as a witness

95. I now turn to the issue of whether it should be made a condition of the plaintiffs being given leave to amend their pleadings that they do not call counsel for Mr Andrews Jr and VVV as a witness in the proceedings.

96. Although it is true that the Court has power to grant leave to parties to amend their pleadings on condition, no authority was provided in support of the claim that a permissible condition is that the party seeking leave does not call a lawyer for the other party at the hearing. Circumstances may be imagined where the Court might impose such a condition on leave to amend pleadings at the last moment or during the course of the hearing, when the consequences of a lawyer for one of the parties having to withdraw as a result might not be able to be remedied. However, in the present case, as the pleadings have not been completed, I do not think it would be proper for the Court to impose the condition that has been sought.

95. On the other hand, the plaintiffs could have included the claim for breach of clause 10 of the sale agreement in the original statement of claim, and if they had done that, with proper particulars showing the involvement of the present counsel for Mr Andrews Jr and VVV, counsel would have understood from the outset that he could not accept the brief. His clients would have been spared the costs that will inevitably flow from the replacement of counsel. In those circumstances, it will be proper for the costs order against the plaintiffs resulting from their amendment of their pleadings to encompass those additional costs suffered by Mr Andrews Jr and VVV. Provision for those additional costs should also be allowed for in the additional amount of security for costs to be provided by the plaintiffs.

96. As all of the notices of motion now before the Court are part heard, I would hope that counsel could retain his brief at least until the Court makes the decision whether or not to make an order that certain questions in these proceedings be determined separately.

97. The plaintiffs should be aware that, where I have stated above that I require the plaintiffs' claim for the enforcement of clause 10 of the sale agreement to be pleaded properly, I expect specificity concerning the identity of the clients who they say form the basis of the claim, and the circumstances in which the involvement of the clients constituted a breach by VVV of clause 10 of the sale agreement.

98. Frankly, I am not inclined to believe that the plaintiffs will ultimately call a long list of Infocus' former clients cold, and think that, if the claim based upon clause 10 proceeds, the claim will be based on documentary evidence of whoever the new service provider is, and communications between that service provider and the clients. The plaintiffs' gambit of raising the issue and then refusing to commit themselves is unfortunate.

99. I invite the defendants to prepare draft short minutes of order to give effect to these reasons for judgment. They should then confer with the plaintiffs and either deliver agreed short minutes of order, or contending ones, to my associate within seven days.

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Decision last updated: 14 August 2020