Lucantonio v Kleinert

[2009] NSWSC 1277

CITATION:	Lucantonio v Kleinert [2009] NSWSC 1277
HEARING DATE(S):	13 October 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	13 October 2009
DECISION:	Grant leave to plaintiff to reopen case upon terms that relevant witnesses be recalled for further cross-examination. Plaintiff to pay defendants’ on an indemnity basis.
CATCHWORDS:	PROCEDURE – application by plaintiff to reopen case after judgment reserved – relevant considerations – whether evidence sought to be adduced would cause undue prejudice to the defendants – where refusal to grant leave would likely result in an objectively incorrect decision – where court satisfied that plaintiff did not deliberately withhold evidence – where court satisfied that potential prejudice to defendants will be in part cured by allowing defendant’s to recall witnesses for cross-examination
LEGISLATION CITED:	(NSW) Uniform Civil procedure Rules 2005, r 29.6
CATEGORY:	Procedural and other rulings
PARTIES:	Dean Lucantonio as trustee for the Lucantonio Family Trust (plaintiff) Jaime Kleinert (first defendant/XC1 first cross-defendant/XC2 cross-claimant) Otto Stichter (second defendant/XC1 cross-claimant/XC2 first cross-defendant) Darryl Leslie Warren (third defendant/XC1 second cross-defendant/XC2 second cross-defendant)
FILE NUMBER(S):	SC 20351/04
COUNSEL:	Mr G Laughton SC w Ms D Christofis (plaintiff) Mr G Curtin (second defendant)
SOLICITORS:	Gells Lawyers (plaintiff) Kennedys Lawyers (first defendant) DLA Phillips Fox Lawyers (second defendant) McCabe Terrill Lawyers (third defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BRERETON J

Tuesday 13 October 2009

20351/04 Dean Lucantonio as Trustee for Lucantonio Family Trust & 2 Ors v Jaime Kleinert & 2

JUDGMENT (ex tempore)

1 HIS HONOUR: By notice of motion dated 9 September 2009 and filed in court today, prior notice having been given informally to each of the defendants, the plaintiff Dean Lucantonio seeks leave to reopen his case – judgment having been reserved in August of this year – for the purpose of adducing in evidence documents, copies of which are annexed to his affidavit. Accordingly, the application is one made for leave to re-open after the conclusion of the trial, after judgment has been reserved but before judgment has been given.

2 One of the issues at the trial, and a significant one, was causation – namely whether, but for the negligence alleged against each of the defendants, the plaintiff would in any event have been unable to complete the purchase of the Majors Bay Road property in accordance with the Notice to Complete. The defendants argued that the plaintiff did not have finance in place for that purpose, and would not have been able to complete in any event.

3 The documents now sought to be tendered are National Australia Bank documents which bear signatures of the plaintiff and his parents as guarantors, and which prove that the plaintiff and his parents had executed relevant finance documents with the National Australia Bank on or about 7 January 2002.

4 At trial, the defendants' position was that there was no evidence that such documents had been executed. The plaintiff’s position was somewhat equivocal, but, based on the evidence as it stood, it would likely have led to a conclusion that it was more probable than not that such documents had never been executed.

5 The documents now sought to be tendered, if leave be granted, would falsify the conclusion which I would probably otherwise have reached on the evidence as it is.

6 It must be a powerful case for reopening that the evidence sought to be tendered would make a decision that the court would otherwise reach patently an incorrect one. I am satisfied that the case is not one in which a deliberate tactical decision was made not to adduce this evidence. The documents were annexed to an affidavit that Mr Lucantonio had sworn and filed in Family Law proceedings between himself and his former wife. Plainly, it was in his interests at the trial to adduce such evidence if it were available and, in those circumstances, I think it must follow that the failure to do so was the result not of a deliberate forensic decision but of what Mr Laughton has sought to describe as an oversight, but might more accurately be described as an inadequacy of attention to the diligence required by the plaintiff’s discovery obligations.

7 Although not a deliberate decision, the fault that the material was not adduced is plainly that of the plaintiffs, for not undertaking a sufficiently diligent search and discovering all relevant documents. There is force in the submission advanced on behalf of the second defendant by Mr Curtin that earlier discovery and production of these documents might have had an impact on the course of the trial. In particular, it might have impacted on the cross-examination of Mr Shiraldi, whose signature appears as a witness on at least one of the documents sought to be tendered, particularly on his cross-examination by counsel for the third defendant. Indeed, it might have impacted on the cross-examination of Mr Lucantonio generally. It has been suggested it might also have affected evidence from Mr Lucantonio's parents, but they were not called and thus argument has much less force. It seems to me that these documents, unless their authenticity was seriously in issue, could have been tendered during the trial without the parents being called, just as they are tendered now, without the parents being called and in that respect, I am unpersuaded that there is prejudice. But I do accept that, in terms of the conduct of the trial, there is at least some potential, if not actual, prejudice in the sense that the defendants may have conducted the case differently, may have cross-examined Mr Shiraldi differently or further, and may have cross-examined Mr Lucantonio differently or further, had this material then been known.

8 The question then becomes one of balancing the undesirability of the court making a judgment based on incomplete evidence – which would otherwise probably, on what is now known, result in a wrong judgment on this issue – on the one hand, against, on the other, the prejudice which reception of the further evidence would occasion, in terms of the forensic conduct of the case by the defendants. Although it may not be a universal answer, I am satisfied that, in the circumstances of this case, there can really only be one answer to that question, and that it is vastly preferable that the court proceed on a correct view of the facts, rather than on a false premise in resolving the question of causation.

9 While I accept that the potential prejudice to the defendants will not entirely be cured by the opportunity which I propose to afford them to have Mr Lucantonio and, if they wish, Mr Shiraldi recalled for further cross-examination, that will, at least partly, address any such prejudice.

10 For those reasons, therefore, I propose to accede to the application to reopen on terms that, if required by any of the defendants, Mr Lucantonio and Mr Shiraldi will be recalled for further cross-examination. Of course, if they wish, the defendants are entitled to an opportunity to adduce evidence responsive to the further evidence, although there is no indication of that at this stage.

11 I grant leave to the plaintiff to reopen his case under UCPR Rule 29.6, for the purpose of adducing in evidence documents, copies of which are annexed to his affidavit sworn 9 September 2009 and comprised in exhibit DL3 to that affidavit.

12 As this involves an indulgence to the plaintiff which is occasioned by inadequate attention to his discovery obligations in the past, the plaintiff should pay the defendants' costs of this application on an indemnity basis. I order that the plaintiff pay the defendants' costs of the motion on an indemnity basis.

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