Mango Capital v Patsis (No 2)
[2018] NSWSC 762
•28 May 2018
Supreme Court
New South Wales
Medium Neutral Citation: Mango Capital v Patsis (No 2) [2018] NSWSC 762 Hearing dates: 21 May 2018 Date of orders: 21 May 2018 Decision date: 28 May 2018 Jurisdiction: Common Law Before: Schmidt J Decision: Leave sought to amend statement of claim granted.
Catchwords: CIVIL PROCEDURE – notice of motion – leave sought to amend statement of claim – where amendments in response to cross-claim filed a year prior – where delay occurred as a result of representative error – whether granting amendment consistent with overriding purpose of just, quick and cheap resolution of issues in dispute – costs – leave to amend granted – costs Legislation Cited: Civil Procedure Act 2005 (NSW) Category: Procedural and other rulings Parties: Mango Capital Pty Limited ACN 159 668 229 (Plaintiff/First Cross-Defendant)
Nicolaos Patsis (First Defendant /First Cross-Claimant)
Eleni Patsis (Second Defendant/Second Cross-Claimant)
Vasilios Patsis (Third Defendant)
Nick Khosh (Second Cross-Defendant)Representation: Counsel:
Solicitors:
C D Wood (Plaintiff)
Diamond Conway (Plaintiff)
Konstan Lawyers (First and Second Defendants)
Yeldham Price O’Brien Lusk (Second Cross-Defendant)
File Number(s): 2016/0081060 Publication restriction: Nil
Judgment
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These proceedings concern a claim for possession of property at Marrickville which is the subject of a mortgage entered in 2015. The proceedings were brought as the result of an alleged failure to repay the borrowings when they fell due. They are defended by Mr and Mrs Patsis, but their son, the third defendant, has never been active in the proceedings.
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By motion filed on 8 May 2018 Mango Capital sought leave to file an amended statement of claim, joining as parties Mr and Mrs Patsis’ finance broker, solicitors and accountants. The claims sought to be advanced against them arose as the result of claims made by Mr and Mrs Patsis in a cross-claim filed in 2016.
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At the hearing of the motion, I gave leave to file the amended statement of claim, with associated costs orders, for the following reasons.
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The other parties did not consent to or oppose the application, which was supported by affidavits sworn by Mango Capital’s solicitors, Mr Carkagis and Mr Hudspeth. Those affidavits explained the complicated procedural history of these proceedings; some of the history of the relationship between Mango Capital and the defendants; Mango Capital’s failure to comply with various Court’s orders; and the circumstances in which its belated application to file the amended summons was made, after new counsel was briefed.
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By those affidavits, Mango Capital’s solicitors accepted that while much delay was the result of the illness of counsel originally briefed to act in the proceedings, which finally resulted in the termination of her retainer, there had also been considerable error on their part, in the conduct of the proceedings.
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The orders proposed included that Mango Capital pay the costs thrown away by Mr and Mrs Patsis, as the result of the granting of the leave it sought. It, however, opposed any order being made in favour of the other parties for the costs of the motion, however, in circumstances where it was argued that their consent to the filing of the amended summons should have been forthcoming.
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The application was governed by the Civil Procedure Act 2005 (NSW), which by s 56 specifies the overriding purpose of the Act to be “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”. It also imposes specific obligations on the Court, the parties and their legal representatives, in relation to the furtherance of that purpose. Section 57 requires the Court in meeting its obligations, to have regard to:
“(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.”
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Section 58 requires that the Court must seek to act in accordance with the dictates of justice, having regard to the matters specified in s 58(2). Section 59 requires the Court to seek to eliminate delay and s 60, to implement its practice and procedure with the object of resolving the issues between the parties in such a way that costs are proportionate to the importance and complexity of the subject-matter in dispute. Section 64(2), however, subject to s 58, requires that all necessary amendments to pleadings be made “for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings”.
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Bearing these requirements in mind and taking account of the evidence which established that representative error lay at the heart of the delayed application for leave to amend the statement of claim, I was satisfied that the Court’s power to grant the leave sought had to be granted, in the circumstances which had arisen for consideration. The unchallenged evidence of Mr Carkagis and Mr Hudspeth established that Mango Capital’s approach to the litigation had not been the result of any attempt on either their part, or that of Mango Capital, to obtain any advantage in the proceedings.
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In those circumstances I was satisfied that costs of the motion should be costs in the cause, so far as the second cross-defendant Mr Nick Khosh was concerned. It was not suggested that grant of the leave sought would result in any costs thrown away, as far as he was concerned. Consistently with his obligations under s 56, the orders sought by Mango Capital should have been consented to.
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So far as Mr and Mrs Patsis were concerned, however, I was satisfied that justice required that the considerable costs thrown away as the result of the errors of Mango Capital’s legal representatives, including the costs of the motion which they finally did not oppose, given what had been revealed by the evidence which they did not challenge, had to be borne by Mango Capital.
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Decision last updated: 28 May 2018
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