Lobendhan, Philemon Alban and Ors v West Perth Investments Pty Ltd and Ors West Perth Investments Pty Ltd and Ors v Lobendhan, Philemon Alban and Ors v

[1998] FCA 1176

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 586 of 1995

BETWEEN:

AND:

PHILEMON ALBAN LOBENDHAN
FIRST APPLICANT

LOUISE LOBENDHAN
SECOND APPLICANT

SANLOW PTY LTD (ACN 064 737 677)
THIRD APPLICANT

WEST PERTH INVESTMENTS PTY LTD (ACN 009 106 496)
FIRST RESPONDENT

LANCIA HOLDINGS PTY LTD (ACN 054 269 715)
SECOND RESPONDENT

BRIAN JENNINGS
THIRD RESPONDENT

BETWEEN:

AND:

WEST PERTH INVESTMENTS PTY LTD (ACN 009 106 496)
FIRST CROSS CLAIMANT

LANCIA HOLDINGS PTY LTD (ACN 054 269 715)
SECOND CROSS CLAIMANT

BRIAN JENNINGS
THIRD CROSS CLAIMANT

PHILEMON ALBAN LOBENDHAN
FIRST CROSS RESPONDENT

LOUISE LOBENDHAN
SECOND CROSS RESPONDENT

SANLOW PTY LTD (ACN 064 737 677)
THIRD CROSS RESPONDENT

JUDGE:

HEEREY J

DATE:

16 SEPTEMBER 1998

PLACE:

MELBOURNE

RULING

On the third day of the trial the applicants seek to amend their already amended statement of claim.  In essence, three matters are raised.  First, the allegation of a representation that the shop being offered to the applicants would attain a turnover of about $75,000 a week.  Secondly, an allegation of, in effect, nondisclosure of a letter dated 16 December 1993 from Composite Buyers Limited to Mr Jennings which referred to the new Epping shopping centre as being likely to be built during 1995 and that it would be “big”.  Thirdly, there is an unparticularised allegation that the respondents represented to the applicants that there were no further matters which they ought to have disclosed to the applicants.

As I indicated in the course of argument, I think it is appropriate to allow these amendments, subject to the right of the respondents to plead any appropriate defence - including a limitation defence.  There may be a ground for criticism in that the alleged representation as to the $75,000 turnover did not emerge until the course of Mr Lobendhan's evidence and that the Composite Buyers’ letter has been known for some time to the applicants’ legal advisers.  But these are matters going to the ultimate merits of these particular issues and should not bar the applicants from raising them if there be no irremediable prejudice to the respondents.

Understandably, the respondents seek some time to obtain instructions and it is not contested that a reasonable time would be the rest of the day, subject however to the interposing of another witness of the applicants’ at 2.15 pm.  Unless that witness can be heard today, he will not be available at all.  I will grant the applicants leave to make the amendments sought.  I will direct that the respondents file an amended defence by the commencement of proceedings tomorrow.  I will order that the costs thrown away by the amendment be paid by the applicants.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated:             16 September 1998

Counsel for the Applicants:	Mr D Masel
Solicitors for the Applicants:	Pryles & Defteros
Counsel for the Respondents:	Mr M J Colbran
Solicitors for the Respondents:	McGrath Carey Katz
Date of Hearing:	16 September 1998
Date of Judgment:	16 September 1998