Metcash Foot and Grocery Pty Ltd v Randall

[2015] NSWDC 440

District Court

New South Wales

Medium Neutral Citation:	Metcash Foot & Grocery Pty Ltd v Randall [2015] NSWDC 440
Hearing dates:	2 October 2015
Date of orders:	02 October 2015
Decision date:	02 October 2015
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Grant leave to the plaintiff to file by 16 October 2015 an amended statement of claim raising any matters arising out of the issue of the goods being sold and delivered to PG & R Randall Pty Ltd. (2)   Grant leave to the first defendant, in a defence to the amended statement of claim, to include a defence based on the matters raised in paragraph 15 of his proposed amended defence in Annexure A to the affidavit of Stephanie Lee Dyball dated 17 August 2015, such defence to be filed by 30 October 2015. (3)   Extend time for the plaintiff to serve its affidavits in chief until 1 December 2015. (4)   The first defendant to pay the plaintiff’s costs occasioned by the foreshadowed amendment to his defence and to pay the costs of the notice of motion. (5)   Leave to the plaintiff to have the costs in order (4) assessed forthwith. (6)   Grant liberty to the plaintiff, in the event that it is successful in the proceedings and, at that time, has not sought to have the costs in order (4) assessed, to apply to have those costs assessed on an indemnity basis. (7)   Stand over for directions on Thursday, 3 December 2015 at 9.30am before the Judicial Registrar.
Catchwords:	CIVIL PROCEDURE — pleadings — amendment – defence
Legislation Cited:	Civil Procedure Act 2005, s 56 Uniform Civil Procedure Rules 2005, r 42.1
Category:	Procedural and other rulings
Parties:	Metcash Foot & Grocery Pty Ltd (plaintiff) Paul Randall (first defendant) Stephen Ashworth (second defendant)
Representation:	Counsel: Mr C Parkin (plaintiff)   Solicitors: Patane Lawyers (plaintiff) Artstein Legal Pty Ltd (first defendant) Planning Development Commercial Lawyers (second defendant)
File Number(s):	2014/244478
Publication restriction:	None

Judgment

1. The plaintiff, Metcash Foot & Grocery Pty Ltd (“Metcash”), sues Paul Randall and Stephen Ashworth in respect of wood sold and delivered to a company, Shell Heights Pty Limited (“Shell Heights”), pursuant to a credit agreement between Metcash and Shell Heights in which Mr Randall and Mr Ashworth guaranteed the debts of Shell Heights to Metcash. An alternative claim is advanced that the goods were sold and delivered to Mr Randall.

2. The proceedings have had a significant procedural history but have not yet reached the point of being allocated a hearing date. The first defendant, Mr Randall, seeks leave to amend his defence. His present defence at first denies the liability of Shell Heights to Metcash but elsewhere admits the liability of Shell Heights to Metcash and also admits the obligations of Mr Randall under the guarantee. The proposed amendment seeks to deny the liability of Shell Heights on the basis that the goods were ordered by, and sold and delivered to, another company which Mr Randall had incorporated.

3. The second defendant, Mr Ashworth, was not involved in that second company. His defence alleges that the goods were sold and delivered not to Shell Heights but to the second company and/or Mr Randall.

4. The matters in favour of granting the amendment can be shortly stated.

5. First, the subject of the amendment was raised in an affidavit by Mr Randall some three months ago and an amendment to the defence was foreshadowed soon thereafter. The amendment, although not identical to the defence of Mr Ashworth, does raise a matter similar to that raised by Mr Ashworth and thus, raises a matter that would likely have been an issue at the trial in any event, at least between Mr Ashworth and Metcash.

6. Secondly, the proceedings have not yet been given a trial date.

7. Thirdly, there is some substance to the assertion that the goods were sold to a second company and not to Shell Heights. It was not suggested by Metcash to be a futile argument. The second company was incorporated at the time of an apparent dissolution of the commercial relationship between Mr Ashworth and Mr Randall.

8. On the other hand, there is no proper explanation for the delay, whether it be because of some careless oversight by Mr Randall or otherwise. The amendment application has come after a failure by Mr Randall to adhere to directions in respect of a motion for amendment.

9. I take into account the overriding purpose specified in the rules of a quick, cheap and just resolution of the real issues in the proceedings as stated in s 56 of the Civil Procedure Act 2005.

10. The proposed pleading seeks to withdraw an admission in the current pleading that the relevant goods were sold and delivered to Shell Heights. The withdrawal of an admission ordinarily would warrant a more complete explanation of the reason for the change of the case than has been proffered on this application. The amendment seeks to change the pleading to one directly contrary to its current form and is not merely adding further matters.

11. Metcash also submits that the defence of Mr Ashworth, whilst pleading the delivery of the goods to the second company, uses terms suggesting that Mr Randall might not be absolved of responsibility because the goods were delivered both to Mr Randall and the second company. Such an allegation would only serve to alter Mr Randall’s liability from one under the guarantee to a liability to Metcash directly.

12. Bearing all these matters in mind, I am inclined to the view, on balance and not without some reservations, to grant to Mr Randall leave to file an amended defence.

13. The consequence of the amendment will be to add the identity of the second company into the dispute. It is possible that Metcash may wish to join the second company known as PG & R Randall Pty Ltd to the proceedings. Rather than have Mr Randall file a defence and then file a further defence in answer to an amended statement of claim, I propose to grant leave to Metcash to file an amended statement of claim within two weeks joining the second company, PG & R Randall Pty Ltd, to the proceedings if it so chooses, and for the defendants to have leave to file a defence to that statement of claim within two weeks thereafter raising the delivery of the goods to PG & R Randall Pty Ltd, as is indicated in para 15 of the proposed defence.

14. Mr Randall did not oppose a costs order being made in favour of Metcash for the costs thrown away by reason of the amendment proposed. Nor was there opposition to costs being assessed forthwith. The only dispute in respect of costs was whether an indemnity costs order was appropriate. The circumstance of the delinquency and delays by the first defendant of itself does not make an order for indemnity costs automatic. Had Metcash agreed to the amendment more than a month ago, costs may have been significantly reduced. And the first defendant can submit in his favour that he has succeeded on the application, and rely upon r 42.1 of the Uniform Civil Procedure Rules 2005.

15. Metcash, should it succeed in the proceedings and in the event that it has not otherwise in the interim sought to have costs assessed on the ordinary basis, should be granted liberty to renew its application that the costs the subject of my orders today be assessed on an indemnity basis.

16. Accordingly, the orders of the Court are:

1. Grant leave to the plaintiff to file by 16 October 2015 an amended statement of claim raising any matters arising out of the issue of the goods being sold and delivered to PG & R Randall Pty Ltd.

2. Grant leave to the first defendant, in a defence to the amended statement of claim, to include a defence based on the matters raised in paragraph 15 of his proposed amended defence in Annexure A to the affidavit of Stephanie Lee Dyball dated 17 August 2015, such defence to be filed by 30 October 2015.

3. Extend time for the plaintiff to serve its affidavits in chief until 1 December 2015.

4. The first defendant to pay the plaintiff’s costs occasioned by the foreshadowed amendment to his defence and to pay the costs of the notice of motion.

5. Leave to the plaintiff to have the costs in order (4) assessed forthwith.

6. Grant liberty to the plaintiff, in the event that it is successful in the proceedings and, at that time, has not sought to have the costs in order (4) assessed, to apply to have those costs assessed on an indemnity basis.

7. Stand over for directions on Thursday, 3 December 2015 at 9.30am before the Judicial Registrar.

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Decision last updated: 10 August 2018