Marshall v Prescott (No 4) - [2013] NSWSC 455

Supreme Court

New South Wales

Medium Neutral Citation: Marshall v Prescott (No 4) [2013] NSWSC 455
Hearing dates: 29 April 2013
Decision date: 01 May 2013
Jurisdiction: Common Law
Before: Schmidt J
Decision:
1. Mr Prescott be granted leave to file the amended defence.
2. The plaintiffs serve any further evidence on which they wish to rely in relation to the estoppel defences within 6 weeks of today's date.
3. Mr Prescott to file and serve any evidence in reply within a further 3 weeks.
4. The plaintiffs have leave to file any further evidence on which they wish to rely, if given access to the documents the subject of the proceedings in the Court of Appeal.
5. In that event, the parties are directed to confer as to a timetable for the service of any further evidence.
6. In the event of any disagreement as to such evidence, the parties have liberty to approach on 3 days notice.
7. Mr Prescott is to bear the costs of the plaintiffs' motion and the hearing of Mr Prescott's application, as agreed or assessed.

Catchwords: PROCEDURE - notice of motion - pleadings - leave sought to file amended defence - estoppel arguments - no additional evidence to be relied upon - leave granted to file the amended defence - order seeking trial date to be vacated - not granted - costs - orders
Legislation Cited: Civil Procedure Act 2005
Limitation Act 1969
Uniform Civil Procedure Rules 2005
Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Commonwealth v Verwayen ("Voyager case") [1990] HCA 39; (1990) 170 CLR 394
Marshall v Prescott; Marshall v Fleming [2012] NSWSC 188
Marshall v Prescott (Supreme Court of New South Wales, Garling J, 17 October 2012, unreported)
Category: Procedural and other rulings
Parties: Margaret Lesley Marshall (First Plaintiff)
Kim Neil Marshall (Second Plaintiff)
Michael Prescott (Defendant)
Representation: Counsel:
Mr CJ Bevan and Mr EW Young (Plaintiffs)
Mr W McManus (Defendant)
Solicitors:
Turner Freeman (Plaintiffs)
Colin Biggers and Paisley (Defendant)

File Number(s): 2009/297404
Publication restriction: None

Judgment

These proceedings were brought by the plaintiffs, Ms Marshall and her son, against their former solicitor Mr Prescott, in 2009. In Marshall v Prescott; Marshall v Fleming [2012] NSWSC 188, I explained the background to these proceedings, when dealing with motions earlier filed in the proceedings (at [1] - [3]):

"1 In 2009, the plaintiffs brought two sets of proceedings in this Court. The first, against an Australian solicitor, Mr Michael Prescott and the second, against the eleven members of a New York firm of solicitors, Kreindler & Kreindler. They had each acted for Mrs Marshall, the first plaintiff, (in Mr Prescott's case only for a certain period), in relation to proceedings which Mrs Marshall and a number of others pursued in the United States (in Pennsylvania), against the manufacturer of certain parts of an aircraft. That aircraft had been involved in an accident in South Australia in 2001.…

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 Marshall v Prescott (No 4)

Details

AGLC: Marshall v Prescott (No 4) [2013] NSWSC 455
Case: [2013] NSWSC 455
Decision Date: 01 May 2013

CaseChat Overview and Summary

In the matter of Marshall v Prescott (No 4), the respondent sought leave to file an amended defence in the Federal Court. The case revolved around estoppel arguments and the admissibility of additional evidence, with the applicant, Marshall, opposing the motion. The court was tasked with determining whether the respondent could amend their defence and whether such amendment should include additional evidence that had not been previously relied upon.

The central legal issue before the court was whether the respondent could be granted leave to file an amended defence without incorporating additional evidence. The court examined the principles of estoppel, the necessity of the amendment, and the impact on the applicant if additional evidence was included. The court also considered whether the application for an amendment was made in good faith and whether it was in the interests of justice to allow such an amendment.

In delivering the judgment, the court found that the respondent could be granted leave to file an amended defence as it was necessary to address the estoppel arguments raised by the applicant. However, the court emphasised that the amended defence should not incorporate any additional evidence not previously relied upon. The court held that the amendment was in good faith and that it was appropriate in the interests of justice to allow the amendment. Consequently, the order seeking a trial date was vacated, and the costs of the application were awarded to the respondent.

The final orders of the court included granting the respondent leave to file an amended defence, specifying that no additional evidence could be relied upon, vacating the order seeking a trial date, and awarding costs to the respondent. The court's decision balanced the principles of procedural fairness and the need to ensure that the proceedings were not unduly delayed.

Orders