Jacob Jack Kochergen & Anor v Geoffery York Bell & Ors; Geoffery York Bell & Ors v Jacob Jack Kochergen

[1998] FCA 1204

CATEGORY: NO QUESTION OF PRINCIPLE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 87 of 1995

BETWEEN:

JACOB JACK KOCHERGEN
AND
JOAQUIN INVESTMENTS PTY LTD
(ACN 008 165 197)

APPLICANTS

AND:

and:

and:

GEOFFREY YORK BELL,
BRUCE RAYMOND SPANGLER,
CW PTY LTD (ACN 007 901 546),
NICHOLAS JOHN STORER,
CHRISTOPHER MARTIN GARRETT
AND
BENTLEYS SERVICES PTY LTD (ACN 007 534 643)

RESPONDENTS

GEOFFREY YORK BELL,
BRUCE RAYMOND SPANGLER,
CW PTY LTD (ACN 007 901 546),
NICHOLAS JOHN STORER,
CHRISTOPHER MARTIN GARRETT,
BENTLEYS SERVICES PTY LTD (ACN 007 534 643)
AND
ENVIROWASTE ENTERPRISES PTY LTD (ACN 008 046 562)

CROSS CLAIMANTS

JACOB JACK KOCHERGEN,
JOAQUIN INVESTMENTS PTY LTD (ACN 008 165 197),
JACKIE BILLIE KOCHERGEN
AND
ELAINE ANN KOCHERGEN

CROSS RESPONDENTS

JUDGE:

MANSFIELD J

DATE:

16 SEPTEMBER 1998

PLACE:

ADELAIDE

REASONS FOR DECISION

HIS HONOUR:        The fifth and sixth respondents have applied by motion of 27 August 1998 to extensively amend their defence.

On that motion, I propose to give leave to the fifth and sixth respondents to file and serve an amended defence to the allegation in par 1 of the further amended statement of claim in terms of pars 1 and 1.1 of the document which is exhibit CMG1 to the affidavit of Christopher Martin Garrett sworn on 27 August 1998.  I give leave accordingly.  I do not otherwise grant the application to amend their defence in the other respects identified in that document or in the document handed to me entitled Proposed Amended Defence of Garrett and BSPL.  The proposed amendment which I do not allow in part withdraws certain admissions, and in part withdraws certain allegations of fact made in the existing defence in response to the statement of claim which are complementary to denials in that defence.  The sixth respondent has had as a director the second respondent at all material times.  There is no matter put forward which suggests the factual allegations are not correct, but the fifth and sixth respondents now wish to adopt an agnostic position on those matters.  The factual allegations presently made on their behalf are not said to be embarrassing, and the second respondent was apparently a person with knowledge of those facts.  I do not think therefore that any real prejudice will be caused to the fifth and sixth respondents.  The context is clearly that the actors involved in the transactions which are the subject of the present pleadings are the applicant and the first, second and third respondents.  On the material before me, the fifth and sixth respondents could not meaningfully participate in the trial of the factual issues relating to those matters, except through the knowledge of the second respondent, if at all.  There is no reason why the sixth respondent did not give, or was not capable of giving, the instructions apparently reflected in the existing defence through the second respondent, albeit that the facts to which the relevant paragraphs of the existing defence and statement of claim refer may not themselves have directly involved the sixth respondent.

I accordingly give leave to amend the defence of the fifth and sixth respondents in the way I have identified.  I otherwise adjourn the notice of motion.  I give liberty to the fifth and sixth respondents to apply to renew the application to amend their defence further, but only to accord with any amendments to the defence of the first, second and third respondents, if they are pursued and allowed.  Such an application has been foreshadowed by the new solicitors for the first, second and third respondents.

[Submissions as to costs]

I order that the fifth and sixth respondents pay to the applicant costs of and incidental to their notice of motion of 27 August 1998 to date, to be taxed.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Decision of the Honourable Justice Mansfield.

Associate:

Dated:             25 September 1998

Counsel for the Applicants:  Mr C Brohier
  with him
  Mr J Lumsden

Solicitors for the Applicants:  Thomson Playford

Counsel for the First, Second and  Ms S Maharaj
Third Respondents:  with her
  Mr S Cullimore

Solicitors for the First, Second and  Lynch & Meyer
Third Respondents:

Counsel for the Fourth, Fifth and  Mr S Lane
Sixth Respondents:  with him
  Mr R Bonig

Solicitors for the Fourth, Fifth and  Fountain & Bonig
Sixth Respondents:

Date of Hearing:  16 September 1998

Date of Decision:  16 September 1998