Levy v Bablis & Anor - [2009] NSWSC 890

CITATION: Levy v Bablis & Anor [2009] NSWSC 890

HEARING DATE(S): 27-28 July 2009

JUDGMENT DATE :
28 July 2009

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

EX TEMPORE JUDGMENT DATE: 28 July 2009

DECISION: I decline to allow the amendment to the Third Further Amended Statement of Claim.

CATCHWORDS: EQUITY - Undue influence - Proposed amendment to statement of claim would cause unfair delay to hearing

CATEGORY: Procedural and other rulings

CASES CITED: AON Risk Services Australia Limited v Australian National University [2009] HCA 26

PARTIES: Julian Emmanuel Levy (Plaintiff)
Peter Bablis (First Defendant)
United Producers & Associates Pty Limited ACN 114 655 417 (Second Defendant)

FILE NUMBER(S): SC 6289/06

COUNSEL: Mr S J Stanton (Plaintiff)
Mr M Holmes (Plaintiff)
Mr J Simpkins SC (First Defendant)
Mr M Condon (First Defendant)
Ms P McEniery (First Defendant)
Mr A Street SC (Second Defendant)
Ms D Hawkins (Second Defendant)

SOLICITORS: McLachlan Thorpe Partners (Plaintiff)
Minter Ellison (First Defendant)
Slattery Thompson (Second Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

TUESDAY 28 JULY 2009

6289/06 JULIAN EMMANUEL LEVY v PETER BABLIS AND UNITED PRODUCERS & ASSOCIATES PTY LIMITED

JUDGMENT

1 HIS HONOUR: In the opening of these proceedings in the course of argument I enquired of counsel for the plaintiff whether or not the facts in this proceeding as opened to me might found a cause of action in either presumed or actual undue influence.

2 Partly in response to that exchange, a proposed Third Further Amended Statement of Claim was advanced in the proceeding yesterday. It included in paragraphs 45 and 46 an amendment which raised a cause of action grounded upon presumed undue influence or actual undue influence by the first defendant alleged to have been exercised on the plaintiff.

3 Argument has taken place this morning about whether or not that part of the amendments in the proposed Third Further Amended Statement of Claim should be permitted. Mr Simpkins makes several points about the proposed amended pleading. I do not record all his arguments here, but only four that were finally influential upon me. He says firstly in relation to the cause of action in relation to presumed undue influence, that if such a relationship were established it would have the consequence of reversing the onus of proof and placing it upon the first defendant for the first time in these proceedings.

4 That in turn would require the first defendant to reconsider decisions it has made in preparation of these proceedings not to call certain witnesses. He says that it would also require the reconsideration of the calling of evidence from witnesses in relation to the full relationship between the plaintiff and the first defendant to attempt to establish, for example, that notwithstanding the presumed undue influence, there was in fact no actual influence.

5 Secondly, Mr Simpkins says that if allowed this amendment may require the reversal of some forensic decisions that were made on behalf of…

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.

Continue reading Levy v Bablis & Anor

Details

AGLC: Levy v Bablis [2009] NSWSC 890
Case: [2009] NSWSC 890
Decision Date: 28 July 2009

CaseChat Overview and Summary

In the matter of Levy v Bablis & Anor, the Federal Court of Australia was tasked with considering an application to amend a statement of claim in a proceeding brought by the plaintiff, Mr. Levy, against the defendants, Mr. Bablis and another party. The plaintiff sought to amend the statement of claim to include additional allegations of undue influence, which the defendants argued would cause an unfair delay to the hearing of the matter. The court had to determine whether the proposed amendments were appropriate and whether their inclusion would unduly delay the proceedings.

The central legal issue before the court was whether the plaintiff's proposed amendments to the statement of claim, which included additional claims of undue influence, should be permitted. The court needed to weigh the potential prejudice to the defendants against the plaintiff's right to amend his pleadings. The court also had to consider the timing of the application and whether it was reasonable for the plaintiff to seek to amend the statement of claim at that stage of the proceedings.

The court found that the proposed amendments sought to introduce new claims of undue influence, which were not only additional but also significantly different in nature from the existing claims. The court noted that the defendants had already been put on notice of the general nature of the claims and had been given an opportunity to respond to the original statement of claim. Given the timing of the application and the significant changes proposed, the court concluded that allowing the amendments would cause an unfair delay to the hearing of the matter. The court therefore refused the plaintiff's application to amend the statement of claim, noting that the prejudice to the defendants outweighed the plaintiff's right to amend his pleadings.

Orders