NCON Australia Ltd v Spotlight Pty Ltd (No 2) - [2011] VSC 100

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 8246 of 2009

NCON AUSTRALIA LIMITED (ARBN 099 019 851)	Plaintiff
v
SPOTLIGHT PTY LTD (ACN 005 180 861)	Defendant

---

JUDGE:	Robson J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 - 18, 21 - 25 and 28 February and 1 - 2 March 2011
DATE OF RULING:	23 February 2011
CASE MAY BE CITED AS:	NCON Australia Ltd v Spotlight Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2011] VSC 100

---

PRACTICE AND PROCEDURE – application to amend claim for damages – amendment sought once trial had started – plaintiff foreshadowed intent to increase damages claim before trial – amendment allowed once proper particulars supplied to the defendant

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr R L Dean Dr M R Sharpe	Peter G Richards
For the Defendant	Mr R Garratt QC Ms R B Sion	Cornwall Stodart

HIS HONOUR:

The defendant has objected to Mr Reibel being asked questions relevant to an increased damages claim. The existing particulars of loss of damage dated 4 September 2009 make a claim for damages of $1,494,556.72. That claim is premised on the assumption that NCON Australia Limited lost the benefit of a five year lease. The plaintiff wishes to amend its claim for damages to include a further or alternative claim of damages of an unspecified sum based on a ten year lease.

The affidavit of Mr Richards of 15 February 2011 discloses that the plaintiff foreshadowed its intention to increase its damages claim on 20 January 2011.

Mr Richards affidavit, in part, reads as follows:

On 20 January 2011 I had a conversation with Ms Forde. In that conversation I stated the plaintiff wished to deliver amended particulars of its loss and damages which increased the quantum of the claim. I stated that those particulars were in the form of a supplementary witness statement of Mr Reibel. I explained that there were two changes that were simple; namely, allowing for tax offsets which had been omitted, and, secondly, taking account that on the balance of probabilities the five year lease would have been extended for a further term of five years to ten years to total.
…
I reiterated that Mr Reibel was concerned about disclosing any supplementary witness statement, information and material which he considered constituted valuable intellectual property owned by himself. Mr Reibel requested of me that I request that the statement be given to counsel brief on behalf of the defendant, Ms Forde and Cornwall Stodart, on the basis only that they give undertakings as to confidentiality.
On 20 January 2011, after that conversation, I confirmed that conversation in a letter to Cornwall Stodart again setting out the two changes.

Mr Richards exhibited the letter as PGR2 to his affidavit. In the letter Mr Richards, under the heading of “Damages claimed by the plaintiffs”, states:

I wish to deliver amended particulars of damage. The claim is now $2,292,558.32 on the basis…

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.

Keep reading for free

Create a free CaseChat account to read NCON Australia Ltd v Spotlight Pty Ltd (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] VSC 100
Decision Date: 23 February 2011

CaseChat Overview and Summary

In the Federal Court of Australia, NCON Australia Ltd brought an action against Spotlight Pty Ltd for damages related to alleged breaches of a contractual agreement. The nature of the dispute centred around the interpretation and enforcement of the terms of the contract, specifically concerning the obligations of both parties and the resulting financial losses. The case reached the point of trial, and it was during this phase that NCON sought to amend its claim for damages, increasing the amount it was seeking from Spotlight.

The primary legal issue before the court was whether NCON was entitled to amend its claim for damages after the trial had commenced. Spotlight argued that such a late amendment was inappropriate and prejudicial. However, NCON contended that it had foreshadowed its intent to seek an increased damages claim before the trial began and had now provided the necessary particulars to Spotlight, making the amendment fair and just. The court needed to balance the principles of procedural fairness and the ability to amend claims to achieve justice in the case.

The court found that while it is generally not permissible to amend a claim for damages once a trial has commenced, exceptions can be made when the opposing party has been made aware of the potential for such an amendment beforehand and has not been prejudiced by the delay. Given that NCON had foreshadowed the intent to increase its damages claim and had now provided the required particulars, the court allowed the amendment. The court held that the amendment was just and equitable under the circumstances, and the trial could proceed with the updated claim. Consequently, the court ordered that the amendment to the damages claim be accepted, and the trial continued with the updated particulars provided by NCON.

Orders