Moran v Ossman
[2012] NSWDC 251
•14 December 2012
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 reliance damages alleged, must be provided so as to identify the means by which damages resulted from reliance upon the representations.
Further, in view of the content of paragraph 63, I do not propose to grant leave to maintain a claim in that form.
Subject to those matters, and on the condition that the particulars I have identified be served at the same time as the filed cross-claim, I grant leave to the cross-claimants to file the third amended cross-claim by 21 December 2012. That cross-claim is to be in the same form as annexure A to the affidavit of Olga Edwards sworn 5 December 2012, apart from paragraph 63 of that document which is to be omitted.
As to the second item in the notice of motion, namely that the Turpentine logs be delivered up or made available for collection, I note that there is no evidence answering the requirements of Uniform Civil Procedure Rules 2005 rule 13.1(b). That is, there is no evidence of a belief by the cross-claimants or a responsible person that the cross-defendant has no defence to that part of the claim.
There is a further reason why summary relief in respect of this matter is inappropriate. The cross-claimants assert within the statement of cross-claim that the cross-defendant has purchased the logs. Those facts, if established, would establish an entitlement in the cross-defendant to retain possession of the logs. Whilst the cross-claimants maintain this allegation, it is inappropriate to grant the relief sought, at least on a summary basis.
Thirdly, there appears to be a dispute as to whether the Turpentine logs are properly separate from the other timber that was provided to the cross-defendant for milling. In respect of that issue I was provided by the counsel for the cross-claimants with an unreported copy of the decision of Dinmore Meatworks Pty Ltd v Kerr [1962] HCA 47, (1962) 108 CLR 628. That decision indicates that where an article is delivered for work to be done on the article, a particular lien exists entitling retention of the article if the party claiming a lien has a claim for money for work done on the article, and if the article remains in the possession of the party which did the work. The cross-claimants primary argument seems to be that work was not done on the Turpentine logs so no particular lien exists over those logs. The Dinmore Meatworks Pty Ltd decision indicates that the matter is complicated when the article has several components.
In the present case, it appears to be a live issue whether the relevant article is the Turpentine logs, which were not the subject of work, or rather is all the logs, some of which were the subject of work and some of which were not. In my view, that matter raises factual issues which should not be determined in advance of the final hearing.
For these reasons, I decline to make the orders in accordance with paragraph 2 of the notice of motion, and refuse the entry of judgment in the terms sought.
The parties have also asked that I make directions in respect to the future conduct of the matter. Apart from the orders already made I make the following directions:
I direct the cross-defendant to file and serve any defence to the third amended statement of cross-claim by 29 January 2013. I will allow until 1 February 2013 for any necessary further lay evidence to be filed and served by the cross-claimants.
The cross-defendant will have until 29 March 2013 to file and serve any evidence in response.
The matter will be re-listed on 4 April 2013 before the Civil List Judge for the purpose of obtaining a hearing date, and any necessary pre-trial directions.
I grant liberty to the parties to apply on two days' notice.
(Argument about costs)
In respect of costs I note that the cross-claimants accept that costs thrown away by reason of the amendment are payable by the cross-claimants.
In respect of the costs of the notice of motion it seems to me that the cross-defendant has been largely successful. It has succeeded in respect of the application for summary judgment. In respect of the application for leave to file the further amended statement of cross-claim leave was granted, but it was on condition that certain further particulars be provided, and that a paragraph in the proposed pleading was deleted. Further, the application to amend is made some lengthy time after the proceedings have commenced.
In those circumstances, I propose to order the cross-claimants to pay the cross-defendant's costs of the motion.
I have been asked to make a specific order about payment forthwith but I do not propose to do so. Uniform Civil Procedure Rule 42.7 indicates the general approach that interlocutory costs orders are payable after the conclusion of the proceedings. No submission has been advanced supporting a special ruling in this application.
Orders
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, either in the pleading or separately.
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 principally to establish assumptions made in their expert reports, 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.
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Decision last updated: 13 February 2013
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