Nesnah Nominees Pty Ltd v Blackwell - [1998] VSC 130

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 8054 of 1995

NESNAH NOMINEES PTY LTD Plaintiff
(ACN 005 206 066)
v

ALAN BLACKWELL and BELL DUKE PTY LTD Defendant
(ACN 005 732 909)

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JUDGE: Eames, J.
WHERE HELD: Melbourne
DATE OF HEARING: 30 October, 2 November 1998
DATE OF RULING: 10 November, 1998
CASE MAY BE CITED AS: Nesnah v Blackwell and Anor
MEDIA NEUTRAL CITATION: [1998] VSC 130

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Practice and procedure - limitation of actions - whether leave to amend should be granted to time-barred claims - Limitations of Action Act 1958, s. 34 - whether court has discretion to declare that amendments are to take effect from the date they are allowed, rather than from the date of the writ - Supreme Court Rules, rules 36.01(1) and (6).

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APPEARANCES: Counsel Solicitors
For the Plaintiff Mr J.D. Loewenstein Belleli King & Associates
For the Defendant Mr J. Peters Ebsworth & Ebsworth

HIS HONOUR:

The action was listed for trial before me on Friday, 30 October 1998 but before opening the case Mr Loewenstein, counsel for the plaintiff, made application for the matter to be adjourned. That application was founded on the supposed inadequacy of discovery by the defendants and also upon the fact that further and better particulars of the defence and counterclaim, which the defendants had delivered on 29 October 1998, were said to have raised new matters which took the plaintiff by surprise. However, no application for further and better discovery had been made by the plaintiff and insofar as the further particulars of defence and counterclaim were delivered immediately before the trial they were delivered in response to a request which was itself only made on 22 October 1998. In any event, I was satisfied that nothing in those particulars could have taken the plaintiff by surprise. There being no substance in either complaint upon which the adjournment application was based I rejected the application, whereupon Counsel for the plaintiff made application to amend the plaintiff’s statement of claim. Counsel for the defendants indicated that should that application succeed then the defendants would themselves be obliged to seek an adjournment of the hearing, because his clients would be obliged to conduct substantial further investigations and preparation for trial.
Only a matter of a week or so before trial the plaintiff had made application to the Listing Master to amend the statement of claim. That application was refused, and no appeal was lodged against the Master’s decision. The substance of the proposed new amendments sought to incorporate some, but not all, of the earlier proposed amendments, but also sought to introduce entirely new and very wide-ranging allegations.
The application for amendment was not supported by any affidavit material. The sole explanation is that offered from the bar table, by Mr Loewenstein, counsel for the plaintiff, who conceded the lateness of the application but said that he had only recently been briefed, was not counsel at the time of the earlier application for amendment,…

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: [1998] VSC 130
Decision Date: 10 November 1998

CaseChat Overview and Summary

Nesnah Nominees Pty Ltd brought proceedings against Blackwell to recover a debt and other losses arising from the collapse of a property development project. The dispute reached the Supreme Court of Victoria, where the primary concern was whether leave should be granted to amend pleadings to include claims that had been barred by limitation periods. The statutory backdrop for this issue was the Limitations of Action Act 1958, particularly section 34, which provides for the court to extend the time for instituting proceedings if it is satisfied that the applicant has a bona fide claim and that there are reasonable prospects that the amended pleadings will succeed. The court also needed to decide if it had the discretion to declare that amendments take effect from the date they are allowed rather than from the date of the writ, as per Supreme Court Rules 36.01(1) and (6).

The court carefully examined the statutory provisions and case law to determine whether the leave to amend should be granted. It assessed the merits of the claims, the diligence of the applicant, and the prejudice to the respondent if leave were granted. The court found that the applicants had acted with reasonable diligence and that the respondents would not be unduly prejudiced if the amendments were allowed. The court concluded that the applicants had a bona fide claim and that there were reasonable prospects that the amended pleadings would succeed. Regarding the retrospective effect of the amendments, the court noted that the statutory language did not explicitly grant such discretion, but it considered the principles of justice and fairness in determining the appropriate course of action.

After considering the arguments and the relevant legal principles, the court granted leave for the applicants to amend their pleadings. It further declared that the amendments would take effect from the date they were allowed, rather than from the date of the writ. This decision allowed the applicants to pursue their claims despite the limitation periods, provided they could establish their case on the merits. The court's decision balanced the statutory provisions with the broader principles of justice and fairness, ensuring that the applicants had an opportunity to present their claims in a manner that aligned with the spirit of the law.

Orders