Levy v Bablis & Anor
[2009] NSWSC 890
•28 July 2009
CITATION: Levy v Bablis & Anor [2009] NSWSC 890 HEARING DATE(S): 27-28 July 2009
JUDGMENT DATE :
28 July 2009JURISDICTION: 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)
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 his client which are evident from the way the objections to evidence were dealt with yesterday. One of these was a decision not to put in contest the plaintiff's general medical condition. The nature of that condition and any medical contest about it is something which Mr Simpkins says would achieve greater prominence if some of the underlying medical issues were be challenged by the first defendant as they may have to be in a presumed or actual undue influence case compared with the kind of case which is currently pleaded.
6 Such issues might achieve greater prominence in an undue influence case. A finding about how well or unwell the plaintiff actually was at the time of the subject transactions could either advance or detract from a submission that he was subject to undue influence by the first defendant at that time.
7 The third submission Mr Simpkins made is that one consequence of pleading a case of actual undue influence or of presumed influence is that any consequential findings that might be made against the first defendant in that respect may have an impact upon the apportionability of the claims against the first defendant in relation to other potential wrong doers. To the extent that the defendant might be found under such a cause of action to be involved in either intentional or unconscionable conduct, it will be more likely to adversely affect the apportionment of such claim under applicable apportionment legislation. In those circumstances if the amendment was allowed it is submitted that the first defendant would need to review his decision not to launch cross-claims against other parties or non parties. The need for such a review is, in my view, a likely consequence of granting the amendment.
8 Finally, it is also said in relation to the plea of actual undue influence, that the plea does not clearly articulate the material factors underlying the actual undue influence which is being alleged. Looking at paragraphs 1 to 8, paragraph 22 and paragraph 43 of the pleading, which are the relevant paragraphs picked up by the pleading of undue influence in paragraph 45, there is some force in the submission that those paragraphs are, with the exception of paragraph 22, more apt for a plea of presumed undue influence. Any claim of actual undue influence would need to be expanded out of the material in paragraph 22, which would require the provision of particulars and the further articulation of material facts as to the course of the relationship between the plaintiff and the first defendant. This would further expand the plaintiff’s case for which some reaction time would be needed by the first defendant which would inevitably lead to further delay.
9 When I put to him the first defendant’s contentions about the reversal of the onus of proof and the need for the first defendant to make different tactical decisions about calling witnesses and launching other fresh pleadings, Mr Stanton said in reply, two things: first, that the fundamentals underlying forensic decisions in the case are still much the same and second, that if they are different and some reaction time is required, that an adjournment would be the way to deal with it.
10 I understand those arguments but I am of the view that granting leave for the amendment would be likely to create unfairness to the first defendant at this point in the trial, coming as the application did on day one. I expect that each of the matters put by Mr Simpkins would be the legitimate and reasonable reaction of a defendant faced with such an amendment. Each of those consequences that I have outlined from his submissions does seem to me to be likely to follow from the making of the amendment. Each one of those, if they occurred, would now involve substantial delay to the conduct of this hearing and the probable vacation of the hearing dates.
11 Given the matter has been set down, given that all the parties have been well advised by competent legal advisors who have long ago made their tactical choices about the causes of action which will be advanced and defended on each side and given that the Court has set aside the limited time that it has for these proceedings, notwithstanding the possible suggestion by Mr Stanton that the plaintiff might be prepared to bear the costs of any adjournment of these proceedings, this is not a matter where I am of the view that the amendment should be allowed to create a situation in which an adjournment would be necessity. I should also say that the amendment is derived somewhat indirectly from comments I made in the course of opening, so that it does not need substantial explanation or justification by the plaintiff, a factor the absence of which can often tell against such an application: AON Risk Services Australia Limited v Australian National University [2009] HCA 26 per French CJ at [30] and per Gummow, Hayne, Crennan, Kiefel and Bell JJ at [106].
12 There are many causes of action in the current pleading which do draw upon the underlying facts as they have been opened to me in this case and which are in contest without this extra cause of action. It is appropriate in my view for the matter to proceed without the amendment. Weighing the various considerations I principally reach this conclusion because of the unfairness that would be occasioned to the first defendant by the timing of the amendment, an unfairness which cannot easily be cured in circumstances where the proceedings have now started. The proceedings involve issues about the reputations of the plaintiff and the first defendant and no doubt the second defendant. It is important for all the parties concerned that those issues of reputation be resolved sooner rather than later. Even if a costs order covers wasted expenditure, an adjournment does not provide adequate compensation for the substantial delay in the resolution of those important issues of reputation that would be likely to occur were the Court to allow the amendment.
13 For all those reasons I decline to allow the amendment to the extent that in paragraphs 45 and 46 it pleads causes of action based on presumed undue influence, actual undue influence and related illegitimate pressure.
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