Nguyen v Phan - [2015] VSC 32

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2012 06727

MINH NGUYEN & ORS	Plaintiffs
v
TU PHAN & ORS	Defendants

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	9 FEBRUARY 2015
DATE OF RULING:	10 FEBRUARY 2015
CASE MAY BE CITED AS:	NGUYEN v PHAN
MEDIUM NEUTRAL CITATION:	[2015] VSC 32

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PRACTICE AND PROCEDURE – Pleadings – Amendment – Delay – Application for leave during trial – Very recent appreciation of pleading issues – No material prejudice to defendants – Leave granted to amend statement of claim – Leave refused to amend reply and defence to counterclaim – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 36.01(1)(a)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr IG Waller QC with Mr HL Redd and Ms KL Burgess	Baker & McKenzie
For the Defendants	Mr MD Wyles QC with Dr TJF McEvoy and Mr DJ Fahey	Arnold Bloch Leibler

HIS HONOUR:

A. The applications

Yesterday, the plaintiffs sought leave to amend the statement of claim in this proceeding in the form of the proposed third further amended statement of claim dated 9 February 2015 (the “Proposed Statement of Claim”). The Proposed Statement of Claim includes, for the first time, allegations of an express trust in relation to each of the first agreement, the second agreement and the third agreement set out at paragraphs 9, 11 and 20 respectively of the existing statement of claim. Leave was also sought to amend the plaintiffs’ reply and defence to counterclaim.

B. The circumstances

The trial commenced on 26 November 2014. Accordingly, the application can only be viewed as very late.

The reason for the delay was explained by senior counsel for the plaintiffs who stated, in effect, that the issue the subject of the Proposed Statement of Claim only became apparent to him recently by reason of issues raised by the defendants. It is correct that the defendants have been raising issues in relation to the pleadings throughout the course of the trial, some of which have been ventilated before the court.

Senior counsel for the plaintiffs candidly admitted that the issues the subject of the application for amendment should have been put more clearly earlier. I agree.

The plaintiffs submitted the issue now sought to be raised expressly in the Proposed Statement of Claim ought to have been apparent to the defendants prior to the amendment application. I reject this submission. The case now put on the basis of an express trust was not apparent on a fair reading of the previous iterations of the statement of claim.

That said, the use of the word “own” in each of paragraph 9(a), with respect to the first agreement, paragraph 11(d), with respect to the second agreement, and paragraph 20(c)(iv), with respect to the third agreement, is clearly ambiguous. The word “own” was present in those paragraphs of the statement of claim long before the trial commenced. That word was used in the context of…

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: [2015] VSC 32
Decision Date: 10 FEBRUARY 2015

CaseChat Overview and Summary

The case of Nguyen v Phan involved a dispute over the amendment of pleadings during a trial in the Supreme Court of Victoria. The plaintiff sought to amend the statement of claim, while the defendants opposed the application. The central issue before the court was whether the plaintiff should be granted leave to amend the statement of claim during the trial, given that the amendment was sought at a late stage and would impact the defendants' ability to respond adequately.

The court considered the principles established in relevant case law regarding the amendment of pleadings. It was noted that while leave to amend pleadings is generally disfavored when sought at a late stage, it may be granted if the court is satisfied that there is no material prejudice to the opposing party and the amendment is in the interests of justice. In this case, the plaintiff's application for leave to amend was made very close to the commencement of the trial, and the defendants argued that any amendment would cause significant prejudice due to the lack of time to prepare a proper response.

After carefully weighing the factors, the court concluded that the plaintiff should be granted leave to amend the statement of claim. The court found that the defendants had not demonstrated any material prejudice that would outweigh the need for the amendment to be made. However, the court refused the plaintiff's application to amend the reply and defence to the counterclaim, as it considered the timing of that application to be too late and potentially prejudicial to the defendants. The court's decision was made in accordance with the Supreme Court (General Civil Procedure) Rules 2005 (Vic), rule 36.01(1)(a).

Orders