Khoury v Coffey Projects (Australia) Pty Ltd - [2015] NSWCA 371

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371
Hearing dates: 19 November 2015
Decision date: 01 December 2015
Before: Basten JA at [1];
Ward JA at [11];
Tobias AJA at [58]
Decision:
1.   Leave to appeal be granted and the appeal allowed.
2.   The orders made by the Court below on 12 June 2015 be set aside.
3.   In lieu thereof:
(a)   The first defendant’s amended notice of motion dated 28 April 2015 be dismissed.
(b)   The first defendant pay the plaintiff’s costs of and incidental to the hearing of the amended notice of motion.
(c) Pursuant to s 64 of the Civil Procedure Act 2005 (NSW), the plaintiff be granted leave to file an amended statement of claim in the form annexed to his notice of motion filed 30 April 2015 and marked “A”.
(d)   Subject to (e) below, the first defendant pay the plaintiff’s costs of the hearing of the plaintiff’s notice of motion filed 30 April 2015 beyond those that would otherwise have been incurred had the first defendant not opposed the grant of leave to amend the statement of claim.
(e)   The plaintiff pay the costs thrown away by the amendment of the statement of claim in accordance with (c) above.
4.   The respondent pay the applicant’s costs of the application for leave to appeal and the appeal.

Catchwords: APPEAL – application for leave to appeal – interlocutory decision – refusal to grant leave to amend statement of claim and consequent summary dismissal of proceedings against respondent – concurrent hearing – claims for misleading and deceptive conduct and negligence – limitation of action – whether the primary judge erred in refusing leave to amend and summarily dismissing proceedings on basis that cause of action unarguably accrued no later than 30 November 2008
Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), s 12DA(1)
Civil Procedure Act 2005 (NSW), Pt 6, s 64
Fair Trading Act 1987 (NSW), s 42
Supreme Court Act 1970 (NSW), s 101
Trade Practices Act 1974 (Cth), s 52
Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 28.4
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613
In Re the Will of FB Gilbert (Dec’d) (1946) 46 SR(NSW) 318
Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25; (1999) 199 CLR 413
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388
Perre…

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: [2015] NSWCA 371
Decision Date: 01 December 2015

CaseChat Overview and Summary

The appeal concerned an interlocutory decision of the primary judge who refused the applicant leave to amend his statement of claim and summarily dismissed the proceedings against the respondent. The applicant, Mr. Khoury, brought claims against the respondent, Coffey Projects (Australia) Pty Ltd, for misleading and deceptive conduct and negligence. The central issue was whether the primary judge erred in refusing leave to amend and dismissing the proceedings on the basis that the cause of action had unarguably accrued no later than 30 November 2008, thereby raising a limitation period defence.

The court was required to determine whether the primary judge had erred in refusing leave to amend the statement of claim and in summarily dismissing the proceedings. This involved considering whether the proposed amendments would have introduced a cause of action that was arguably not out of time, and whether the primary judge correctly applied the principles governing summary dismissal and the grant of leave to amend pleadings.

The Court of Appeal found that the primary judge had erred in refusing leave to amend the statement of claim. The court reasoned that the proposed amendments were not unarguably futile and that the applicant should have been granted leave to amend his pleadings. The court applied the principles that leave to amend should generally be granted unless the amendment is unarguably bad, and that summary dismissal is a drastic remedy that should only be granted in clear cases. Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders of the primary judge. The court dismissed the respondent's amended notice of motion, granted the applicant leave to file an amended statement of claim, and made orders regarding costs.

Orders

Orders of the court

1. Leave to appeal be granted and the appeal allowed.

2. The orders made by the Court below on 12 June 2015 be set aside.

3. In lieu thereof:

(a) The first defendant’s amended notice of motion dated 28 April 2015 be dismissed.

(b) The first defendant pay the plaintiff’s costs of and incidental to the hearing of the amended notice of motion.

(c) Pursuant to s 64 of the Civil Procedure Act 2005 (NSW), the plaintiff be granted leave to file an amended statement of claim in the form annexed to his notice of motion filed 30 April 2015 and marked “A”.

(d) Subject to (e) below, the first defendant pay the plaintiff’s costs of the hearing of the plaintiff’s notice of motion filed 30 April 2015 beyond those that would otherwise have been incurred had the first defendant not opposed the grant of leave to amend the statement of claim.

(e) The plaintiff pay the costs thrown away by the amendment of the statement of claim in accordance with (c) above.

4. The respondent pay the applicant’s costs of the application for leave to appeal and the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371
Hearing dates:	19 November 2015
Decision date:	01 December 2015
Before:	Basten JA at [1]; Ward JA at [11]; Tobias AJA at [58]
Decision:	1. Leave to appeal be granted and the appeal allowed. 2. The orders made by the Court below on 12 June 2015 be set aside. 3. In lieu thereof: (a) The first defendant’s amended notice of motion dated 28 April 2015 be dismissed. (b) The first defendant pay the plaintiff’s costs of and incidental to the hearing of the amended notice of motion. (c) Pursuant to s 64 of the Civil Procedure Act 2005 (NSW), the plaintiff be granted leave to file an amended statement of claim in the form annexed to his notice of motion filed 30 April 2015 and marked “A”. (d) Subject to (e) below, the first defendant pay the plaintiff’s costs of the hearing of the plaintiff’s notice of motion filed 30 April 2015 beyond those that would otherwise have been incurred had the first defendant not opposed the grant of leave to amend the statement of claim. (e) The plaintiff pay the costs thrown away by the amendment of the statement of claim in accordance with (c) above. 4. The respondent pay the applicant’s costs of the application for leave to appeal and the appeal.
Catchwords:	APPEAL – application for leave to appeal – interlocutory decision – refusal to grant leave to amend statement of claim and consequent summary dismissal of proceedings against respondent – concurrent hearing – claims for misleading and deceptive conduct and negligence – limitation of action – whether the primary judge erred in refusing leave to amend and summarily dismissing proceedings on basis that cause of action unarguably accrued no later than 30 November 2008
Legislation Cited:	Australian Securities and Investments Commission Act 2001 (Cth), s 12DA(1) Civil Procedure Act 2005 (NSW), Pt 6, s 64 Fair Trading Act 1987 (NSW), s 42 Supreme Court Act 1970 (NSW), s 101 Trade Practices Act 1974 (Cth), s 52 Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 28.4
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 House v The King [1936] HCA 40; (1936) 55 CLR 499 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 In Re the Will of FB Gilbert (Dec’d) (1946) 46 SR(NSW) 318 Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25; (1999) 199 CLR 413 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388 Perre…