Lauvan Pty Limited v Bega (No 2) - [2018] NSWSC 155

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lauvan Pty Limited & Anor v Bega & Ors (No 2) [2018] NSWSC 155
Hearing dates: 7 June 2017
Decision date: 22 February 2018
Before: Gleeson JA
Decision:
Application to re-open the second cross-claimant’s case to amend the second cross-claim is refused.

Catchwords: PROCEDURE – application to re-open and for leave to amend cross-claim to include further particulars alleging breaches of fiduciary duty – where application was made on the eighth day of the trial after evidence closed – whether adequate explanation for delay in seeking the amendment – where cross-defendant would suffer material prejudice by reason of forensic choices and inability to cross-examine witnesses unless recalled – where no offer to pay the costs thrown away by the parties occasioned by the adjournment that would be required to allow the cross-defendant to recall witnesses for cross-examination.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58, 64
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Boardman v Phipps [1967] 2 AC 46
Clay v Clay (2001) 202 CLR 410; [2001] HCA 9
Dennis v Australian Broadcasting Corp [2008] NSWCA 37
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104
Category: Procedural and other rulings
Parties: Lauvan Pty Limited (First Plaintiff)
Mittabell Pty Limited (Second Plaintiff)
Helen Bega (First Defendant)
Aidan Bega (Second Defendant)
AB Veritas Pty Limited (Third Defendant)
Charles Ciappara (Second Cross-Defendant)
Representation:
Counsel:
Mr G Sirtes SC / Ms A Avery-Williams (Plaintiffs)
Ms I King (First Defendant)
Mr A Ogborne (Second and Third Defendants)
Mr J Emmett (Second Cross-Defendant)
Solicitors:
Woolf Associates (Plaintiffs)
Coyne Legal (First Defendant)
Aubrey F Crawley & Co (Second and Third Defendants)
K&L Gates (Second Cross-Defendant)

File Number(s): 2015/362975

Judgment

GLEESON JA: On the eighth day of the trial of this proceeding and immediately prior to the commencement of the plaintiff’s closing oral argument, Ms King, counsel for Mrs Helen Bega, made an oral application to re-open her case to amend the second cross-claim by Mrs Bega to include two further particulars of alleged breach of fiduciary duty by the cross-defendant, Mr Charles Ciappara. The only evidence relied upon in support of that application was an affidavit of Mr Glenn Coyne, the solicitor for Mrs Bega, sworn on 7 June 2017.
The application was opposed by Mr Emmett, counsel for Mr Ciappara.
At the conclusion of oral argument, I refused Mrs Bega’s application to amend her second cross-claim and indicated I would deliver my reasons in due course. My reasons for refusing that application follow.
By way of background, Mrs Bega is the first defendant in the proceeding commenced on 10 December 2015 by Lauvan Pty Ltd and Mittabell Pty Ltd (the lenders) seeking to recover…

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.

Keep reading for free

Create a free CaseChat account to read Lauvan Pty Limited v Bega (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 155
Decision Date: 22 February 2018

CaseChat Overview and Summary

The case of Lauvan Pty Limited v Bega (No 2) involved a dispute between the plaintiff and the defendant, with a cross-claim being made by the defendant against the plaintiff. The matter came before the court as an application to re-open and seek leave to amend the cross-claim to include further particulars alleging breaches of fiduciary duty. This application was made on the eighth day of the trial after evidence had closed. The defendant sought to adduce additional evidence regarding the alleged breaches of fiduciary duty, which would require the recall of witnesses for cross-examination.

The legal issues before the court centred on whether there was an adequate explanation for the delay in seeking the amendment, and whether the cross-defendant would suffer material prejudice by reason of the forensic choices and the inability to cross-examine witnesses unless they were recalled. The court also had to consider whether there was an offer to pay the costs thrown away by the parties occasioned by the adjournment that would be required to allow the cross-defendant to recall witnesses for cross-examination.

In determining the application, the court considered the need for an adequate explanation for the delay in seeking the amendment. It was held that the defendant had not provided a sufficient explanation for the delay, and that the cross-defendant would suffer material prejudice by reason of the forensic choices and the inability to cross-examine witnesses unless they were recalled. The court also found that there was no offer to pay the costs thrown away by the parties occasioned by the adjournment that would be required to allow the cross-defendant to recall witnesses for cross-examination. Accordingly, the application was dismissed.

The final orders of the court were that the application to re-open and seek leave to amend the cross-claim was dismissed, and the defendant was ordered to pay the costs of the application.

Orders