Northcott v Varsalona - [2018] SADC 38

District Court of South Australia
(Civil: Application)
NORTHCOTT & ANOR v VARSALONA & ORS
[2018] SADC 38
Reasons for Ruling of His Honour Judge Slattery (ex tempore)
19 April 2018
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - FORM OF PLEADING - RAISING NEW MATTER
EQUITY - GENERAL PRINCIPLES - MISTAKE - EQUITABLE REMEDIES - RECTIFICATION - WHERE MUTUAL MISTAKE
In 2003 the parties entered into a contract for the construction of a domestic home. In 2009 the plaintiffs commenced court proceedings against the defendants alleging defective building work and claiming for damages. The defendants filed a defence and later two further amended defences.
The action was set for trial for 8 May 2018. On 8 March 2018, the Court made orders for the appointment of an arbitrator to enter upon a reference concerning the outstanding building issues to be heard over a period of two days and then to bring in an award on or before 27 April 2018.
The arbitrator entered upon the reference and conducted the hearings under the reference over a two-day period.
On 10 April 2018 the defendants filed an application to be heard on the first day of trial for leave to amend the third defence by filing a fourth defence. The defendants sought to plead that the plaintiffs were estopped (equitable estoppel) from asserting under the building contract that the failure of the builder to carry out tiling work on the verandahs of the home was a defect or was incomplete work. The defendants sought leave to plead that the Building Schedule of the building contract contained a mutual mistake as the basis of the assertion of an equitable estoppel.
The plaintiffs opposed the application. The application was heard on 19 April 2018.
HELD:
Application refused.
A mutual mistake occurs where both parties are mistaken and are therefore not ad idem concerning their contract.
The proposed pleading does not allege that both parties were mistaken. The proposed pleading is wrong in law and does not comply with the rules as to pleadings. It cannot support an assertion of any form of equitable estoppel such as proprietary estoppel or promissory estoppel involving some future conduct.
The defendants propose an amendment of their defence only two weeks before trial and after the arbitrator had embarked upon the reference and had completed hearing evidence. There was a real risk that if the application was allowed, the arbitrator would need to reopen the reference.
At the stage at which the litigation had reached, given its long history and taking into account the content of the proposed pleading, leave should be refused.
District Court Act 1991 s 33; District Court Rules (2006) rr 263, 264, referred to.
Pope & Ors v Harris Orchard (2010) SASC 354; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; Channel 7 Adelaide Pty Ltd v Manock (2010) SASCFC 59; PPG Development Pty Ltd v Capitanio [2016] SASC 169, applied.

NORTHCOTT & ANOR v VARSALONA & ORS
[2018] SADC 38

Interlocutory application brought by the third defendant builder for leave to amend its defence in the form annexed at Exhibit JDS1 to the affidavit of Jordan David Schulz, sworn 9 April 2018.
The trial of this action is due to commence on 8 May 2018. The application that had been made specially returnable to the first day of trial. I have heard this application ahead of the first day of trial for reasons which will become apparent. I consider that it is inappropriate to leave an application of this importance to the first day of trial.
This action concerns a building dispute and it relates to a dispute about work done in 2003. The dispute relates to the construction of a domestic home. The plaintiffs are the owners of the property and the third defendant is the building company. The first and second defendants are the officers of the building company. The second defendant, Maria Varsalona, held a builders licence.
It appears that many issues are in contest between the parties and positions appear to be very well entrenched. The dispute has had a very long history.
Having regard to the nature of the dispute and on the application of the plaintiffs, and where the defendants neither consented to nor opposed the application, I appointed Ms Lolita Mohyla as an arbitrator to embark upon a reference and to produce an arbitrator's award in relation to the specific building matters the subject of complaint between the parties and as reflected within the various Scott Schedules that the parties have produced. For the sake of completeness, the orders that I have made in connection with that reference to an arbitration are now set out below.
1.   If so advised, the plaintiffs may file and serve a Further Amended Particulars of Claim within 2 days to expressly plead a claim for aggravated damages and within a further seven days the defendants shall file and deliver an amended Defence to the plaintiffs’ Further Amended Particulars of Claim;
2.   The defendants to provide a written response to the plaintiffs’ consolidated Scott Schedule by close of business on 28 March 2018 and any supplementary response by close of business on 4 April 2018.
3. The Court directs under section 33 of the District Court Act 1991 and Rule 208 of the District Court Civil Rules 2006 the issues in this Action identified in Order 4 hereof (“the Issues”) be referred for trial by Lolita Veronica Mohyla, an arbitrator (“the Arbitrator”).
4.   The Issues are:
(a)    the existence or otherwise of the defects alleged by the plaintiffs; and
(b)    the scope and cost of rectification work in respect of the same;
For the avoidance of doubt, the defects alleged by the plaintiffs are those in the Consolidated Scott Schedule and those pleaded in paragraphs 40.12 to 40.19 inclusive of the Amended Particulars of 7 June 2016 (“Alleged Defects”).
5.   The trial of the Issues:
(a)    Is to occur after the defendants have provided a written response to the plaintiffs’ consolidated Scott Schedule pursuant to Order 2 above and before 5 pm on Friday 13 April 2018;
(b)    Is to occupy no more than two days;
(c)    Shall be conducted by taking the evidence as to alleged defect by alleged defect at the plaintiffs’ property at Lot 15, William Drive Gilbert Drive, Cockatoo Valley in the State of South Australia with the parties and parties’ counsel and solicitors, parties’ experts, Ray Carn and Stuart Gaskin;
(d)    Otherwise shall be conducted in such manner as the Arbitrator may determine, as agreed between the parties, or as the Court may further direct.
6.   Without limiting the foregoing, Court delegates the following powers to the Arbitrator for the purposes of the trial of the Issues:
(a)    The power to take and receive oral evidence and evidentiary material;
(b)    The power to require a person to make an oath or affirmation (which may be administered by the Arbitrator) to answer truthfully questions put by the Arbitrator and any party to the Action;
(c)    The power to conduct the trial of the Issues in such manner as the Arbitrator deems appropriate and efficient, including to take evidence by topic or Alleged Defect.
7.   Without limiting the foregoing, the Arbitrator:
(a)    shall be bound by the rules of evidence as to relevance and knowledge but shall not be bound by the Rules of Court or ordinary processes of trial in Court;
(b)    shall determine:-
(i)the existence or otherwise of the Alleged Defects;
(ii)in the case of any Alleged Defects which have been determined to previously exist and to have been rectified, the reasonableness of the amount incurred by the plaintiffs;
(iii)in the case of any Alleged Defects which have been determined to exist and have not been rectified, the scope and cost of any rectification work required in respect of the same
(c)    may make such records of the hearing as she sees fit. Insofar as she may wish to photograph matters to be seen on-site, any such photographs are to be provided to the parties electronically, and any party may seek to tender them as evidence. If not so tendered, they do not form part of the evidence of the hearing;
(d)    shall deliver her award to the Court and the solicitors for the parties by 5 pm on Friday 27 April 2018.
8.             (a)      By 5 pm on Friday 9 March 2018the plaintiffs are to provide the Arbitrator with     copies of:
(i)the current pleadings,
(ii)the contract documents and plans,
(iii)the Scott Schedule referred to in the plaintiffs' Amended Particulars of Claim (annexed to Jankovic's report prepared in April 2015);
(iv)all written expert reports relating to the Issues;
(b)    By 5 pm on Thursday 29 March 2018 any party may provide the Arbitrator and the other parties with copies of documents said to be relevant to the Issues, reserving to the other parties any just objections.
9.   The costs of the arbitrator be borne, in the first instance, as to 50% by the plaintiffs and as to 50% by the defendants, but the Court may subsequently order that a party be reimbursed wholly or in part by another party for costs so incurred.
10.   The plaintiffs to file a trial book by Tuesday 27 March 2018;
11.   The plaintiffs to lodge with the Court a joint tender book by 2 May 2018.
12.   Costs of FDN 80 reserved to the Trial Judge.
13.   The costs incurred by the defendants arising out of the amendments described in Order 1 hereof be the defendants’ costs in any event.
14.   Liberty to apply on short notice.
Paragraph 1 of these orders refers to amendments to the pleadings. At the time that these orders were made, the defendants did not signal their intention to seek to further amend their defence.
Paragraphs 3 and 4 of those orders disclose that the arbitration orders concerned ‘the Issues’ arising in the then pleaded case of the parties and as also particularised in the relevant Scott Schedule.
Paragraph 5 of these orders governs the trial of ‘the Issues’ and allowed only two days for the hearing of the reference to be completed. Ms Mohyla has already embarked upon that reference. She is due to hand down her award on 27 April 2018.[1] The issues for determination by the Court are the balance of the legal issues arising on the pleadings. Some legal issues will necessarily be canvassed in the arbitration award. The parties’ legal positions as reflected in the pleadings were well settled at the time that the Arbitrator embarked on the reference. If it were otherwise, there would be some doubt about whether ‘the Issues’ as described in orders 3 and 4 had been identified with sufficient clarity and certainty to enable the Arbitrator to embark upon the reference. No such issues arose or were brought to the Court’s attention in the process of the formulation of the orders for the reference of ‘the Issues’ to the arbitration. I am the trial judge for the matter due to commence on 8 May 2018 which is a little over two weeks from now.
[1] After I announced these reasons that date was extended by agreement to 4 May 2018.
The parties’ pleadings annex a Scott Schedule and responses. There have been various iterations of these documents since the first pleadings were lodged in the Magistrates Court in 2009. The action has been on foot for nine years and the events the subject of the claim and defences occurred some 15 years ago. These are significant matters and are to be given appropriate weight in the exercise of my discretion in this application.
The plaintiffs’ pleadings comprise a series of documents: the first is called ‘Amended Particulars’ dated 7 June 2016. The next plaintiffs’ document is called ‘Schedule 1 – Contract Documents’. The final plaintiffs’ document is the Scott Schedule which contains the plaintiffs’ claims and the responses of the defendants.
In the document described as the ‘Amended Claim and Scott Schedule’ dated 7 June 2016 the plaintiffs plead at para 18 as follows:
Subsequently, the second defendant tendered to the plaintiffs a document entitled ‘Building Schedule’. It contained numerous inaccuracies. It was apparent to the plaintiffs that the defendants had utilised a past precedent which had not been adequately tailored to the plaintiffs' proposed dwelling. The plaintiffs' amended the document, initialled each page, signed the last page and returned the document to the defendants.
Paragraph 18 of this pleading is to be found within that part of the plaintiffs’ pleading about the formation of the parties’ contract and the background thereto. It is plain enough that the plaintiffs allege that a ‘Building Schedule’ was one of the contractual documents that governed the parties’ relationship. Paragraph 2 of Schedule 1 to the pleadings suggests that the document referred to as part of the plaintiffs’ case was unsigned and undated. Whether that is the case (and if so on what basis), and its significance are not matters that can be determined here. It is alleged that this is part of the suite of contractual documents ordinarily to be encountered in building matters.
That paragraph was addressed at para 18 of the document described as the ‘Second Defence’ dated 3 August 2016. Paragraph18 read as follows:
Save and except that the matter set out in the Building Schedule were a subject of negotiation and communication between the parties and that the Building Schedule forms part of the contract documents, the Defendants deny the matters set out in paragraph 18 which are, in all events, vexatious.
A number of things are to be noted. First, the pleading of the defendants employs the use of the definite article ‘the’ in reference to the words ‘Building Schedule’. There is no suggestion that there are a number of building schedules that are in some way different or have a different effect contractually. The second is that the plaintiffs’ pleading is somehow said to be vexatious, however, I see nothing to suggest why it would be that the pleading is said to be vexatious. Ordinarily if a pleading was said to be vexatious under the applicable pleading rules of the court, an application would be made to strike it out. There is no evidence before me that such application was made and I am unable to identify a vexatious aspect to the pleading. I therefore leave that matter to one side.
The important issue is that the plaintiffs plead by reference to a specific Building Schedule and the responding plea accepts that ‘the Building Schedule’ was part of the contractual documents governing the parties’ obligations (my underlining). There is no suggestion from the defendants’ pleading of a case based upon alternative facts asserted by the defendants. The defendants do not plead any alternative case about another building schedule or that the Building Schedule alleged by the plaintiffs is not applicable as a contractual document.
In submissions defendants made reference to the fact that schedule 1 attached to the statement of claim refers to contract documents. Item 7 refers to a Madison Homes Building Schedule. The allegation is that this document is unsigned and undated. This appears to have been an attempt to cast a doubt about the provenance of this document. In light of the content of the pleadings, it is difficult to attribute much importance to this fact. Until now, there appeared to be no issue between the parties about the Building Schedule: the defendants admitted the Building Schedule in para 18 of their defence (my underlining). Ordinarily this would be the end of the matter.
The Court has received and the plaintiffs read the second affidavit of Mark Bevilacqua sworn 18 April 2018 FDN88. Exhibit MRB4 to that affidavit is a Building Schedule. At the fifth page of the document (p 5 of the bundle) under item 15, there was a reference to tiling. A PC sum of $35 per square metre retail from a nominated supplier is allowed. There is a reference to different types of tiling; for example floor tiling and also a reference to the garage floor, which was to be concreted. The structure of the document is such that it identifies a particular tiling task and whether or not, according to the Schedule, the task is to be fulfilled.
In this document, reference is made to the heading ‘Verandah’. Against that heading there is an entry ‘complete area’. There is no attempt to discern a particular verandah or verandahs and the universality of the entry is apparent. Ordinarily it may be thought that if there was to be discernment or distinction of where tiling was to be done, then the proposing party would be required to indicate such a position. That did not occur. This is a matter for trial.
The heading ‘Garage’ is struck through and the word ‘Carport’ is inserted. For the carport the entry ‘concrete’ is also inserted in handwriting. From the documents that I have seen, the owners initialled the document but the builder did not initial it.
At the end of the document, at p 9, there is a provision for a date and it is undated. On one view it may be said it is unsigned and undated because it is not signed by the builder. A doubt may arise about its binding force. This is a question that is unnecessary to decide for the reasons that I have set out above. The pleadings make clear that the Building Schedule contains an entry within the builder’s obligations referable to tiling work. The meaning of that clause is a matter for trial. That issue may or may not turn on the signature of the document or perhaps its date. Be that as it may, there is a reference to a document in para 18 of the original pleading and by the use of the definite article, the Building Schedule, there is a reference to the Building Schedule in para 18 of the second defence (my underlining).
Having regard to the long history of the action and the extraordinary interlocutory history that it contains, I would expect that if there was any doubt about the Building Schedule, it would have surfaced during the pleading process. That did not happen.
The proposed pleading amendment seeks permission for the defendants to plead that the plaintiffs are estopped from asserting that the absence of tiling on the verandahs is a defect and/or incomplete works under the contract as set out in item 1 of the Scott Schedule.
The Scott Schedule at item 11 deals with complaints by the plaintiff owners about the verandah tiling. The complaint at 11.1 of the Scott Schedule is that verandahs are not tiled as per builder's contract schedule of finishes. The plaintiff owners require that after the concrete is corrected, the builder shall provide and fix selected tiling to approval. They also claim an indexed rate for the allowance for the cost of the tiles based upon the rate allowed of $35 square m. The plaintiffs also seek an increased allowance in recognition of the effects of costs increases and inflation. The plaintiffs’ quantum on that figure is $11,860.
The defendants' response within the Scott Schedule is that the builder advised (presumably to plaintiff owners) that this is a contractual matter. As I understand that response to the Scott Schedule, and as appears to be the case, the builder contends contractually that it is not bound to undertake the tiling.
There is no pleading of the form of estoppel in this part of the proposed further pleading. I am informed today by Mr Grace that the nature of estoppel claimed is an equitable estoppel such that an estoppel arises in equity and thus prevents the plaintiffs as owners from asserting an absence of tiling having regard to the understanding between the parties that the verandahs of the domestic building work were to be provided in concrete.
Equitable estoppel is generally divided into two forms, proprietary estoppel and promissory estoppel. As a general ‘rule of thumb’, equitable estoppel will operate where there are representations about future conduct or promises about such conduct. When the representee changes position in reliance upon those representations or promises, then the representee may assert that the representor comes under legal obligation. This analysis may be applied to the well-known forms of equitable estoppel such as proprietary estoppel and promissory estoppel.

The pleading asserts that the plaintiffs are estopped from asserting that the absence of tiling on the verandahs is a defect for the reasons set out in three sub-paragraphs. In light of my summary above, presumably those three sub-paragraphs will relate to future matters and so the source of the legal obligations.
A moment’s thought will reveal the inconsistency here. The defendants plead an agreement about the Building Schedule. If that be the case, there is logical non sequitur to suggest that an estoppel (in the future) arose by virtue of the plaintiffs’ present conduct giving rise to a legal obligation.
Be that as it may, the pleading goes on to say that the first basis of the asserted estoppel is as follows:
[T]he inclusion of the words ‘complete area’ to the verandahs item under ‘Section 15 – Tiling’ in the Building Schedule was a mutual mistake by the parties to the Contract, being the First and Second Plaintiffs and the Third Defendant.
I note again the use of the definite article before the words ‘Building Schedule’. I refer again to item 15 of the Building Schedule, Exhibit MRB4 of the affidavit of Mr Bevilacqua. My understanding is that even if there are some other forms of building schedules, the entry pertaining to tiling does not differ. That plea therefore cannot support a plea of equitable estoppel as a matter of principle. Leaving that matter to one side, the issue on this plea is whether there was a mutual mistake by the parties. This can only be a mutual mistake of fact but such a plea cannot support an equitable estoppel. And there is no pleading of the actual fact about which the mistake was made. All that is pleaded is this mutual mistake by the parties to the first contract. This is a wrong pleading.
The second sub-paragraph to the proposed pleading seeks to plead that it was always the mutual intention of the parties to the contract, being the first and second plaintiffs and the third defendant, that the verandahs be finished with concrete. That is the full extent of the proposed pleading. There is no particularity to the pleading. There is no plea as to at what time this mutual intention was formed, by what process it was formed and by what means it may have been manifest. And it is a pleading of a present fact which cannot support a plea of an equitable estoppel.
As well, I will assume that the drafter of the proposed pleading has deliberately used the expression mutual mistake and so sought to make a distinction from common mistake, which is a mistake that is shared by both parties because they make the same mistake. Quite differently from common mistake, a mutual mistake arises where both parties are mistaken, but for different reasons. The parties’ states of mind will be different and so they intend different things. Their minds cannot meet (in the usual contractual consensus sense) and so they are not ‘ad idem’. As a result no contract can be formed. The pleading in proposed paragraph 18.2 cannot for that reason be a particular of estoppel nor can it give any relevant meaning to any other part of the pleading.
The third sub-paragraph suggests that the defendants relied upon that mutual mistake and mutual intention in providing a concrete surface to the verandah and constructing the damp proof course at its present location where the installation of tiling may cause the damp course to be breached. There is an issue that the insertion of tiling onto the existing verandahs may cause the tiling to exceed the height of the damp proof course and thereby create moisture problems by ingress into the brickwork above the damp proof course.
In his submissions, Mr Grace suggested that insofar as there is a difficulty with the proposed pleading, he would not press the inclusion of the words ‘that mutual mistake’ in the chapeau to para 18.3 of the proposed pleadings. For all of the reasons set out above, this concession cannot assist this proposed pleading which fails at a number of levels.
I have taken all of the submissions of Mr Grace into account in reaching my decision in this matter. It appears that these pleading issues were raised for the first time very recently and at about the time that the application was taken, namely on or about 9 April 2018. This application is made to amend a pleading that has been on foot for many years in an action that commenced nine years ago about a dispute that has been ongoing since in or about 2003/2004. Those are significant matters which weigh heavily in the exercise of my discretion in this matter.
The form of the proposed pleading is wrong in law and insufficiently pleaded, lacks specificity, lacks particularity and fails to properly plead what may be intended to be a defence to be raised by the third defendant. I am satisfied that it will not be possible on any basis to retrieve the proposed pleading on the legal grounds that I have discussed above.
I refer to the decision of White J in Pope & Ors v Harris Orchard (2010) SASC 354 at [24]. If the proposed amendment does not comply with the rules as to pleadings, or it would be liable to be struck out on grounds of noncompliance, or it would inevitably give rise to an application for further and better particulars, then the application should not be allowed. In my opinion that is this case. I would therefore refuse the application on that ground alone.
There are other grounds upon which I would refuse this application; to an extent they are interrelated with the first ground but also stand alone as separate grounds.
The first is that it is quite uncertain whether, if the application was granted, at least a part of the arbitration reference would have to be re-opened. I have earlier set out the orders that I made under s 33 District Court Act 1991. The purpose of those orders is self-evident.
Although I would not necessarily accept at its highest the submissions made by Mr Hurburgh in relation to the question of the finish of the concrete, I accept that there is some doubt in relation to what appears to be inconsistent positions of the defendants in relation to whether or not there is to be finished concrete or, alternatively, concrete appropriate for the application of adhesive floor tiles. Such a finish is not generally a smooth finished concrete surface, but rather a rough surface for better adhesion. That is a matter that may require further evidence before the Arbitrator and further expert evidence if this amendment was allowed.
I accept Mr Grace's submission that the Arbitrator is to bring down an award which provides an alternative assessment that he described as ‘either/or’. That means that the arbitrator will assess the matter having regard to the supply and fixing of the tiles or, alternatively, the absence of tiles. However, that does not address the question of the inconsistency in the position of the builders in relation to the surface. That matter does not seem to have been addressed.
Also, it is not clear to me whether or not there are other consequential matters that may require further attention from the Arbitrator. It is impossible to know the answer to that question until such time as there has been a further conference with the Arbitrator on the assumption, for example, that this amendment was allowed. That is a matter for the arbitration and it is extremely important in this matter. The unhappy history of this matter is set out above. There has been enough delay.
I decided that part of the process of resolution of the matter includes a reference to the Arbitrator. The purpose of that reference was for there to be an assessment by the Arbitrator of the various building matters constituting ‘the Issues’ and for there to be an award brought down in relation to those matters. That award is a matter this Court will or may take into account in the determination of the issues in the action. The award is therefore an extremely important feature of this matter.
Second, I am mindful of the decision of the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. That decision has been discussed in a number of South Australian decisions and, in particular, I refer to the decision of Bleby J in Channel 7 Adelaide Pty Ltd v Manock (2010) SASCFC 59 at 46, and the decision of Doyle J in PPG Development Pty Ltd v Capitanio [2016] SASC 169.
There are 10 features for consideration when there is a late application for amendment that were identified by Bleby J and discussed by Doyle J. The first is the nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law. As I have earlier indicated, the existing defence plea to para 18 of the original pleading was limited to issues of contract. The defendants now wish to plead a form of equitable estoppel based upon a mutual mistake, and then acting in mutual reliance upon that mutual mistake, to lead to the defence which the plaintiff wishes to plead in proposed para 18.3. These proposed pleas raise new issues of both fact and law, apart from the fact that I consider them to be legally untenable.
They are matters that will beget further evidence in chief and, most likely, lengthy cross-examination. They will extend the period of the trial and they are matters that could have and should have been raised and pled much earlier than this. If the defendants’ pleading remains as it is currently, there is no bar to them arguing contractual points but they must be argued within the four corners of the current pleadings.
The second aspect is the merits of the proposed amendment. On the state of the current pleadings, I consider the proposed amendment is not tenable. It does not rise to the status of being arguable. I consider that the form of the proposed amended pleading suffers from significant defects.
The stage of the litigation is the third aspect. In my opinion, there will be disruption to the progress of the trial. The decision in Manock requires me to have regard to disruption to the progress of proceedings and, in particular, the trial. Bleby J had in mind that there may be other matters involved with the trial and in this case includes the process of the arbitration. I also consider that there would be little prospect that the trial could proceed on the day allotted because of those considerations.
The explanation for the application to amend is contained within the affidavit of Mr Schutz. At para 7 he says that in the course of preparing for the arbitration proceedings over the existence of defects he has taken further instructions from the defendants. These further instructions related to the circumstances under which the defendants assert that the tiling of the verandahs did not form part of the contract because the words purporting to include tiling of the verandahs in the contract were inserted by mutual mistake in the course of negotiating the contract.
Despite these averments by Mr Schutz, there is no pleading of a mutual mistake in current existing para 18 of the defence. It follows then that insofar as Mr Schutz has taken instructions about the existing defects, and insofar as he has been instructed on matters about the alleged mutual mistake, they are new matters which over the 15 year life of this dispute, have not been previously identified. I am not satisfied that any proper explanation has been given about these matters and this delay. I am of the view that para 7 of Mr Schutz’s affidavit compounds the difficulties for the defendants.
The next consideration on the question of prior opportunity to plead is to be determined in the context of the explanation consideration. If it is the case that the instructions that relate to these proposed amendments had not been given earlier than about April of 2018, some 15 years after the events, then it is difficult to understand or to accept that there has not previously been a sufficient opportunity to plead this case. The more likely position is that the appropriate questions have not been asked or the instructions have not been given. And it is not necessary for me to do more than identify what are the apparent factual deficiencies in the averments in the affidavit material filed on behalf of the defendants on this topic.
The time, cost and inconvenience associated with delay is a matter that is a priori. The uncertainty and strain of litigation on the parties is inevitable. The arbitration has occurred and the Arbitrator will hand down her award. The Court will then embark upon the hearing of the matters on the basis of the contractual disputes. The Court should not in these circumstances entertain any possibility of any disruption or delay to be occasioned by any amendment.
The next consideration is the impact of any delay and disruption upon judicial and court resources. Six or more years ago it might have been said for a host of reasons that this consideration carried lesser weight than other considerations. That is no longer the position. The District Court of South Australia administers a highly efficient civil list. There is now a very efficient use of judicial and court resources. There is only a very small period of time between the commencement of a proceeding and the matter coming to trial. That shortness of time is a feature of the operation of this Court. That is the proper use of public resources. It is inappropriate for there to be any disruption of judicial and court resources in those circumstances. This has a number of consequences. One of them is that counsel, solicitors and litigants will expect to use a very efficient and timely court system. That is appropriate. Any steps taken by a litigant to forestall such an efficient system will be assessed in the background of those same circumstances.
The position must be that insofar as a party has a trial date, that trial date must be kept and everything done (short of settlement) to ensure that the trial date is used. Whatever may have been the position in the past, nothing should be now done so close to trial which would in any way put in jeopardy the trial itself apart from matters that fall within the rubric of exceptional circumstances. None are apparent here.
Having regard to the exercise of my discretion, and for the reasons that I have given, I would refuse the application.
I give a certificate for counsel. I allow costs of this application, including counsel fee, in the amount of $1,350. I make that costs order under 6 DCR 263 and 264.