Mongey v Demetriou and Anor - [2019] NSWSC 913

Supreme Court

New South Wales

Medium Neutral Citation: Mongey v Demetriou and Anor [2019] NSWSC 913
Hearing dates: 11 July 2019
Date of orders: 15 July 2019
Decision date: 15 July 2019
Jurisdiction: Common Law
Before: Johnson J
Decision:
1. The Second Defendant is granted leave to file an Amended Defence in the form of Annexure A to the Notice of Motion filed on 5 July 2019.
2. The Second Defendant is to pay the Plaintiff’s costs thrown away by the amendment which the Court has allowed.
3.   The Plaintiff is to file and serve a Reply, if any, to the Amended Defence by 29 July 2019. It is noted that the Second Defendant is to file and serve the Amended Defence forthwith, given the order of the Court today.
4.   The Second Defendant is to serve any further evidence upon which she relies by 29 July 2019.
5.   The Plaintiff is to serve any further evidence upon which he relies by 12 August 2019.
6.   The costs of the Notice of Motion are to be the Second Defendant's costs in the cause.

Catchwords: CIVIL PROCEDURE – claim in debt and for breach of contract – notice of motion to amend Defence of Second Defendant – various affirmative defences pleaded in Defence – Second Defendant later made aware of potential further defence to resist claim – consideration of ss.58 and 64(2) Civil Procedure Act – whether proposed amendment is arguable - explanation for delay in bringing amendment application - leave granted – appropriate orders made to retain hearing date
Legislation Cited: Civil Procedure Act 2005
Contracts Review Act 1980
Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Mongey v Demetriou & Anor [2019] NSWSC 444
Photios v Photios [2019] NSWCA 158
Texts Cited: ---
Category: Procedural and other rulings
Parties: Thomas Raymond Mongey (Plaintiff)
Emilios Demetriou (First Defendant)
Janette Linda Ashley (Second Defendant)
Representation:
Counsel:
Mr MW Sneddon (Plaintiff)
Mr VRW Gray (Second Defendant)
Solicitors:
Blunden & Montgomery (Plaintiff)
Somerset Ryckmans (Second Defendant)

File Number(s): 2018/102898
Publication restriction: ---

Judgment

JOHNSON J: By Notice of Motion filed on 5 July 2019, the Second Defendant, Janette Linda Ashley, seeks leave to file an Amended Defence in proceedings commenced by the Plaintiff, Thomas Raymond Mongey.
On 13 August 2018, the Plaintiff obtained default judgment against the First Defendant, Emilios Demetriou. Accordingly, Ms Ashley is the remaining active Defendant in the proceedings.
The final hearing of Mr Mongey's claim against Ms Ashley is listed for 30 September 2019 with a four-day estimate.

Hearing of the Application

At the hearing of the Notice of Motion before me in the Duty Judge List on 10 July 2019, Mr Gray of counsel appeared for Ms Ashley. Mr Sneddon of counsel appeared for Mr Mongey.
In support of the Notice of Motion, Mr Gray read the affidavit of Martin Rosenblatt, solicitor, affirmed 4 July 2019 and the affidavit of Ms Ashley sworn 29 November 2018.…

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.

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Details

Case: [2019] NSWSC 913
Decision Date: 15 July 2019

CaseChat Overview and Summary

The parties involved in this case were Mongey, the plaintiff, and Demetriou and another defendant, the second defendant, who were defendants in a claim for debt and breach of contract. The plaintiff sought leave to amend the defence of the second defendant, who had initially pleaded various affirmative defences in their response. The second defendant later became aware of a potential additional defence that could be raised to resist the claim. The court had to decide whether to grant leave for the amendment under sections 58 and 64(2) of the Civil Procedure Act, and if so, what orders should be made to ensure the hearing date was retained.

The legal issues that the court needed to address were whether the proposed amendment to the defence was arguable and whether the delay in bringing the amendment application could be explained. The court had to consider whether the amendment would likely lead to a successful defence for the second defendant, and if there was a reasonable explanation for the delay in applying to amend the defence. The court also had to weigh the potential prejudice to the plaintiff against the overall interests of justice.

The court found that the proposed amendment was arguable, as it presented a potential defence that could be successfully raised. The explanation for the delay in bringing the amendment application was considered reasonable, taking into account the circumstances of the case. The court granted leave for the amendment and made appropriate orders to retain the hearing date. This allowed the second defendant to plead the additional defence and proceed with the case on its merits.

The final orders included granting leave to the second defendant to amend their defence and setting a new date for the hearing to accommodate the amendment. The court also ordered that the plaintiff be given notice of the amendment and provided an opportunity to respond to the new defence. This decision ensured that the case could be heard on its merits, with the second defendant having the opportunity to raise all relevant defences.

Orders