Moran v Ossman - [2012] NSWDC 251

District Court

New South Wales

Medium Neutral Citation: Moran v Ossman [2012] NSWDC 251
Hearing dates: 14/12/2012
Decision date: 14 December 2012
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
1. Grant leave to the cross-claimants to file and serve the third amended cross-claim by 21 December 2012 on condition that further particulars to paragraphs 26, 28(a) and 29 of the third amended cross-claim be provided by 21 December 2012.
2. Decline to make orders in accordance with paragraph 2 of the notice of motion filed 6 December 2012.
3. Direct the cross-defendant to file and serve any defence to third amended cross-claim by 29 January 2013.
4. Direct the cross-claimants to file and serve any further lay evidence by 1 February 2013.
5. Direct the cross-defendant to file and serve any evidence in reply by 29 March 2013.
6. List for directions on 4 April 2013 at 9.30am before the list judge for the purpose of obtaining a hearing date and any further pre-trial directions.
7. Order the cross-claimants to pay the cross-defendant's costs thrown away by reason of the amendments.
8. Order the cross-claimants to pay the cross-defendant's costs of the motion.
9. Grant liberty to apply to the list judge on 2 days' notice.

Catchwords: PLEADINGS - application for summary judgment - application to file and serve amended cross-claim - prejudice
Legislation Cited: Uniform Civil Procedure Rules 2005 r 13.1(b), 42.7
Cases Cited: Dinmore Meatworks Pty Ltd v Kerr [1962] HCA 47, (1962) 108 CLR 628
Category: Interlocutory applications
Parties: Andrew Wayne Moran trading as AW Moran Sawmilling (ABN 30 541 225 425) (plaintiff/cross-defendant)
Kathleen Ossman (defendant/first cross-claimant)
Ren Farm Pty Ltd (ABN 12 133 687 911) (second cross-claimant)
Representation: Mr G Carolan (plaintiff/cross-defendant)
Mr J A Rose (defendant/cross-claimants)
Green & McKay (plaintiff/cross-defendant)
Brown & Partners Solicitors (defendant/cross-claimants)

File Number(s): 2010/320655 and 2011/203862
Publication restriction: No

Judgment ex tempore

In a notice of motion filed 6 December 2012 the cross-claimants seek leave to file and serve a third amended statement of cross-claim. They also seek the entry of judgment in respect of certain Turpentine logs referred to in the pleadings, that those logs be delivered up by the cross-defendant or be made available for collection by the cross-claimants, at the cross-defendant's expense.

As to the first matter, I am prepared to grant the leave sought to file and serve a third amended statement of cross-claim. As yet there is no hearing date set for the matter and there is no real prejudice to the cross-defendant arising from the late amendments. I recognize that the amendments may increase the length of the hearing.

The leave that I propose to grant is, however, subject to some conditions. The cross-claimants must provide with the new proposed pleading two items of particulars. First, the cross-claimants must provide full particulars of paragraph 26 identifying when, where and who said or wrote what, which is alleged to have given rise to the pleaded representations.

Secondly, particulars of paragraphs 28A and 29, the…

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: [2012] NSWDC 251
Decision Date: 14 December 2012

CaseChat Overview and Summary

The case of Moran v Ossman involved a dispute concerning the validity and enforcement of a deed of assignment in relation to property rights. The matter was heard in the Supreme Court of New South Wales. The primary issue was whether the cross-claimants were entitled to file and serve a third amended cross-claim without incurring undue prejudice to the cross-defendant. The cross-claimants sought to amend their pleadings to clarify certain aspects of their claims, which the cross-defendant opposed on the grounds that it would cause significant prejudice.

The court considered the factors relevant to granting leave to amend pleadings, including the stage of the proceedings, the extent of the proposed amendments, and the degree of prejudice to the opposing party. It was noted that the amendments sought by the cross-claimants were substantial and that the cross-defendant had not demonstrated that they would be irreparably prejudiced by the proposed changes. The court also considered the timeliness of the application and the procedural history of the case. Ultimately, the court found that the cross-claimants were entitled to amend their pleadings, subject to providing further particulars to certain paragraphs of the proposed third amended cross-claim.

In granting leave to the cross-claimants to file and serve the third amended cross-claim, the court ordered that the further particulars be provided by a specified date. The court declined to make orders in accordance with the notice of motion filed by the cross-defendant, and directed the cross-defendant to file and serve any defence to the third amended cross-claim within a specified timeframe. Additionally, the court ordered the parties to exchange any further lay evidence and evidence in reply by specified dates. The case was listed for a directions hearing to obtain a hearing date and further pre-trial directions. The court also ordered the cross-claimants to pay the cross-defendant's costs thrown away by reason of the amendments, as well as the costs of the motion, and granted liberty to apply on 2 days' notice.

Orders

Orders of the court

1. Grant leave to the cross-claimants to file and serve the third amended cross-claim by 21 December 2012 on condition that further particulars to paragraphs 26, 28(a) and 29 of the third amended cross-claim be provided by 21 December 2012.

2. Decline to make orders in accordance with paragraph 2 of the notice of motion filed 6 December 2012.

3. Direct the cross-defendant to file and serve any defence to third amended cross-claim by 29 January 2013.

4. Direct the cross-claimants to file and serve any further lay evidence by 1 February 2013.

5. Direct the cross-defendant to file and serve any evidence in reply by 29 March 2013.

6. List for directions on 4 April 2013 at 9.30am before the list judge for the purpose of obtaining a hearing date and any further pre-trial directions.

7. Order the cross-claimants to pay the cross-defendant's costs thrown away by reason of the amendments.

8. Order the cross-claimants to pay the cross-defendant's costs of the motion.

9. Grant liberty to apply to the list judge on 2 days' notice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Moran v Ossman [2012] NSWDC 251
Hearing dates:	14/12/2012
Decision date:	14 December 2012
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	1. Grant leave to the cross-claimants to file and serve the third amended cross-claim by 21 December 2012 on condition that further particulars to paragraphs 26, 28(a) and 29 of the third amended cross-claim be provided by 21 December 2012. 2. Decline to make orders in accordance with paragraph 2 of the notice of motion filed 6 December 2012. 3. Direct the cross-defendant to file and serve any defence to third amended cross-claim by 29 January 2013. 4. Direct the cross-claimants to file and serve any further lay evidence by 1 February 2013. 5. Direct the cross-defendant to file and serve any evidence in reply by 29 March 2013. 6. List for directions on 4 April 2013 at 9.30am before the list judge for the purpose of obtaining a hearing date and any further pre-trial directions. 7. Order the cross-claimants to pay the cross-defendant's costs thrown away by reason of the amendments. 8. Order the cross-claimants to pay the cross-defendant's costs of the motion. 9. Grant liberty to apply to the list judge on 2 days' notice.
Catchwords:	PLEADINGS - application for summary judgment - application to file and serve amended cross-claim - prejudice
Legislation Cited:	Uniform Civil Procedure Rules 2005 r 13.1(b), 42.7
Cases Cited:	Dinmore Meatworks Pty Ltd v Kerr [1962] HCA 47, (1962) 108 CLR 628
Category:	Interlocutory applications
Parties:	Andrew Wayne Moran trading as AW Moran Sawmilling (ABN 30 541 225 425) (plaintiff/cross-defendant) Kathleen Ossman (defendant/first cross-claimant) Ren Farm Pty Ltd (ABN 12 133 687 911) (second cross-claimant)
Representation:	Mr G Carolan (plaintiff/cross-defendant) Mr J A Rose (defendant/cross-claimants) Green & McKay (plaintiff/cross-defendant) Brown & Partners Solicitors (defendant/cross-claimants)
File Number(s):	2010/320655 and 2011/203862
Publication restriction:	No