Palta v Iceland Properties Pty Ltd & Ors (Ruling)
[2025] VCC 1026
•18 July 2025 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
BANKING AND FINANCE LIST
Case No. CI-20-04459
| RAKESH PALTA | Plaintiff/Defendant by counterclaim |
| v | |
| ICELAND PROPERTIES PTY LTD (ACN 614 893 202) atf ICELAND PROPERTY UNIT TRUST & ORS (according to the attached schedule) | Defendants/Plaintiffs by counterclaim |
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JUDGE: | HIS HONOUR JUDGE WISE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 July 2025 | |
DATE OF RULING: | 18 July 2025 (ex tempore) | |
CASE MAY BE CITED AS: | Palta v Iceland Properties Pty Ltd & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1026 | |
RULING
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Subject:PRACTICE AND PROCEDURE – Amendment to pleadings
Catchwords: Case management – late application for leave to amend defence – amendments sought to pleading not articulated – disregard of directions and court orders – overarching obligations – trial date vacated on 3 occasions – allowing amendment would cause fourth vacation – prejudice and delay – interests of justice – amendment not permitted.
Legislation Cited: Civil Procedure Act2010 (Vic); County Court Civil Procedure Rules 2018 (Vic).
Cases Cited:Northern Health v Kuipers [2015] VSCVA 172; Hodgson v Amcor Ltd; Amcor Ltd v Barnes (2011) 32 VR 495; Thoroughbred Racing v Those Certain Underwriters & Ors (Ruling) [2011] VSC 370; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 2) [2011] VSC 518.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff/Defendants by counterclaim | Mr M James | Frenkel Partners |
| For the Second Defendants/Plaintiffs by counterclaim | Mr S Bobko | Vernon Da Gama & Associates |
TABLE OF CONTENTS
Introduction
Background and procedural history
Legal principles
Principles applicable to late amendment applications
The nature of the application
When the application was made
Explanation for lateness of the application
Prejudice
Delay
Interests of justice
Conclusion
HIS HONOUR:
Introduction
1This is a matter involving a business arrangement between Rakesh Palta (the plaintiff) and Chashampal Singh Gill (the second defendant) relating to Gill’s companies and properties. Palta alleges that he advanced over $2.2 million to assist Gill’s business. He says this was based on an agreement that Palta would later acquire a 50 per cent interest in the business and related properties. These advances were allegedly formalised into a loan deed under which Iceland Properties Pty Ltd (the first defendant) was to repay the amount by March 2019, with Gill and a related company acting as guarantors. When repayment was not made, Palta lodged a caveat over a property to secure his interest and is now seeking repayment, enforcement of the Loan Deed and judicial sale of the property to recover the debt.
2It is necessary to outline the procedural background which reflects significant delays and repeated failures by both parties to comply with the Court’s directions.
3The proceeding commenced in October 2020 and, nearly five years on, remains procedurally incomplete. The litigation has not progressed to a point where it is ready for trial. Trial dates have been fixed and vacated on three occasions. The Court’s timetable has been extended on multiple occasions and, despite clear obligations and opportunities to comply, the parties have failed to meet key deadlines, including but not limited to the filing of pleadings and service of expert evidence. The proceeding is once again not in a state to be heard and will, if leave is given to the defendants pursuant to its application today, require a fourth adjournment.
Background and procedural history
4Early in the proceeding a jurisdictional issue emerged about whether certain claims were in the exclusive jurisdiction of the Victorian Civil and Administrative Tribunal (VCAT) as they involved matters falling within the scope of the Retail Leases Act 2013 (Vic). That issue resulted in an order on 12 August 2021 dismissing the proceeding. On 14 July 2022 the proceeding was reinstated and listed to be heard alongside a related VCAT matter with a trial date set for 6 June 2023. In early 2023 the Court granted the plaintiff leave to amend his statement of claim. The defendants were ordered to respond by March 2023 but no amended defence was filed. Efforts to obtain a timeframe from the solicitors at the time were unsuccessful. Throughout 2023 and 2024 the defendants changed legal representation on several occasions. These changes contributed to procedural uncertainty and delay. The trial date was first vacated in May 2023 and then relisted for hearing in May 2024.
5In April 2024 following case management discussions, further orders were made vacating the trial date, setting a revised trial date for March 2025 and establishing a new timetable for the filing of pleadings and expert reports. These included a deadline for an amended defence and counterclaim, expert evidence and responsive material from the plaintiff. However, with the exception of a handwriting expert report served by the defendants in June 2024, those obligations were not fulfilled. No amended defence or counterclaim was filed and no expert material addressing loss and damage was filed. By order made on 6 December 2024 the Court extended the timetable for the procedural steps once more and adjourned the trial to September 2025. Fresh deadlines were imposed, including for the defendants to file their outstanding pleadings and outstanding expert material. Again, these deadlines have not been met.
6As at July 2025 the defendants have still not filed an amended defence to the current version of the Statement of Claim and have not filed their further counterclaim.
7The plaintiff in turn has been dilatory in not taking steps necessary to finalise discovery or bring any form of application to enforce the non-compliance of the defendants.
8By orders I made on 6 December 2024, in “Other Matters” paragraph G, I said the following:
“… no further orders will be granted to vacate and refix the trial date unless the Court can be reasonably satisfied that exceptional circumstances apply.”
9Although a mediation was eventually concluded by the parties in June 2025 (which was after the deadline set by the Court) discovery still remains outstanding. The plaintiff has indicated that he is ready to complete this process once the pleadings close. The defendants have indicated that they are awaiting further expert evidence anticipated to be filed and served next Monday before finalising their position.
10On 17 June 2025 the Court advised the parties that the post-mediation directions hearing scheduled for 20 June 2025 would be adjourned and directed the parties to provide a status update and advise of any further orders required by 4.00pm the following day. The plaintiff responded on 18 June 2025, confirming that mediation had been unsuccessful but failed to address the Court’s request for a full status update, instead proposing to submit further orders within seven days.
11In response the Court reiterated its concerns about ongoing non-compliance with court orders and directed the parties to provide a complete status update by 4.00pm on 19 June 2025, warning that affidavit material and submissions will also be required addressing potential breaches by the parties of their overarching obligations.
12On 19 June 2025 both parties wrote to the Court (after the specified deadline) confirming that the defendants still had not filed a defence to the amended statement of claim or a counterclaim, which had been served in February 2023, and had failed to serve expert reports due in March 2025 going to loss and damage and that discovery remained incomplete.
13This matter has been listed for trial on 30 September 2025 since the Orders I made on 6 December 2024. It is approximately two months away from the trial date. There is still no amended defence and counterclaim filed by the defendants. Discovery is still outstanding. Expert evidence sought to be adduced by the defendants has not been filed in relation to damages. Having regard to those defaults, by order dated 23 June 2025, I listed the post-mediation directions hearing today and ordered the parties to file and serve by 11 July 2025 an affidavit from the deponent solicitor with primary carriage of the matter deposing to:
(a) the steps taken to prepare the matter for trial in compliance with timetabling orders made in the proceedings;
(b) the reasons for failing to have complied with timetabling orders (and orders extending timetables) made in the proceeding; and
(c) exhibiting necessary material in support.
14I also ordered that by 15 July 2025 each party file written submissions addressing whether and to what extent the parties are in breach of their overarching obligations in the conduct of the proceeding and whether orders dismissing the proceeding and counterclaim should be made. The parties put on affidavit material and written submissions.
15What is apparent from those affidavits is that since April 2024, when the defendants’ current solicitors came onto the record, there has been no substantial compliance with directions made on 26 April 2024 to amend their defence and counterclaim and to file and serve their expert report going to loss and damage. It is true that the deponent Mr Da Gama, solicitor for the defendants, deposes to having had difficulties in arranging expert evidence reports to be completed and that he has taken some steps to ensuring that this occurs. The fact remains that the second defendants are in breach of directions to file that material and as of today’s date it has not yet been completed.
16Mr James, counsel for the plaintiff, submitted that the cause of the vacation of three prior trial dates lay at the feet of the defendants. Mr Bobko, counsel for the defendants, did not submit otherwise. Mr Bobko’s ultimate submission as it emerged during argument was that his client sought leave to extend the time again to file and serve his expert report to Monday 21 July 2025. He then sought to extend the time to file and serve his clients’ amended defence and counterclaim for a further four weeks.
17I have been informed by Mr James that the nature of the cause of action that Mr Bobko intends to plead is for loss and damage consequent upon the alleged improper lodgement of a caveat on the defendants’ property. Apparently, it is thought that it would be alleged that this caused the loss of Mr Gill’s business and properties. Mr Bobko did not, in terms, outline the nature of the claim that his client intends to further plead and agitate, however in reply he did not submit that what was put by Mr James was incorrect. Under those circumstances I proceed that that is the nature of the claim that he wishes to agitate.
18Mr James submitted that this claim has never been properly articulated in correspondence between the parties, let alone pleaded. Mr Bobko did not submit otherwise.
19In fact, so much did Mr Bobko appear to accept that position, that he submitted that if he was permitted to amend his pleading now, in order to avoid prejudice to the plaintiff, the trial would necessarily have to be vacated. This is in order to give the plaintiff the opportunity to properly consider the pleading and any further discovery necessitated by the amendment and to formulate and plead an appropriate response. Mr James’ ultimate submission was that the Court ought not give leave to the defendants to amend their pleading at this late stage given that the currently fixed fourth trial date that has been in place since December 2024 would need to be vacated and that the fault of that lies at the feet of the defendants.
Legal principles
20The overarching purpose of the Civil Procedure Act2010 is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[1] Section 49 of that Act relevantly provides that a court may give any direction it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.
[1]Section 7 of Civil Procedure Act2010
21Under the Civil Procedure Act, the overarching obligations include the obligation to co-operate with the parties to a civil proceeding and the Court in connection with the conduct of that proceeding.[2] Under s10, the overarching obligations apply to any person who is a party to a civil proceeding. Part 2.1 relevantly comprises the following sections regarding overarching obligations:
[2]Section 20 of the Civil Procedure Act
“7 Overarching purpose
(1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
...
8 Court to give effect to overarching purpose
(1) A court must seek to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers, whether those powers—
(a) in the case of the Supreme Court, are part of the Court's inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or
(b) in the case of a court other than the Supreme Court are part of the court's implied jurisdiction or statutory jurisdiction; or
(c) arise from or are derived from the common law or any procedural rules or practices of the court.
…
9 Court's powers to further the overarching purpose
(1) In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—
(a) the just determination of the civil proceeding;
(b) the public interest in the early settlement of disputes by agreement between parties;
(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i) the fair and just determination of the real issues in dispute; and
(ii) the preparation of the case for trial;
(f) the timely determination of the civil proceeding;
(g) dealing with a civil proceeding in a manner proportionate to—
(i) the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.
(2) For the purposes of subsection (1), the court may have regard to the following matters—
(a) the extent to which the parties have complied with any mandatory or voluntary pre-litigation processes;
(b) the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;
(c) the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
(d) the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;
(e) the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;
(f) any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;
(g) the public importance of the issues in dispute and the desirability of a judicial determination of those issues;
(h) the extent to which the parties have had the benefit of legal advice and representation.
(3) This section does not—
(a) limit any other power of a court to make orders or give directions; or
(b) preclude the court from considering any other matters when making any order or giving any direction.”
22Part 2.3 of the Civil Procedure Act sets out overarching obligations with which the parties to civil proceedings must comply. Section 25 relevantly provides:
“For the purpose of ensuring the prompt conduct of a civil proceeding, a person to whom the overarching obligations apply must use reasonable endeavours in connection with the civil proceeding to—
(a) act promptly; and
(b) minimise delay.”
23Part 4.2 of the Civil Procedure Act confers case management powers on this court and s51 provides a variety of sanctions that may be imposed for contravention of case management orders of the Court. It relevantly provides that:
“If a person to whom a direction has been given or to whom an order made under this Part applies contravenes the direction or order, the court may do any one or more of the following—
(a) dismiss the civil proceeding, whether—
(i) generally; or
(ii) in relation to a particular cause of action; or
(iii) in relation to the whole or part of a particular claim;
(b) strike out or limit any claim made by a plaintiff;
(c) strike out or limit any defence or part of a defence filed by a defendant, and give judgment accordingly;
(d) strike out or amend any document filed by the person, either in whole or in part;
(e) disallow or reject any evidence that the person has adduced or seeks to adduce;
(f) direct the person to pay the whole or part of the costs of another party or person;
(g) make any other order or give any other direction that the court considers appropriate.”
24In Northern Health v Kuipers[3] the Court of Appeal emphasised the importance of compliance with the provisions of the Civil Procedure Act concerning case management procedures:
“119Parties to civil proceedings in the courts of this State must comply with the overarching obligations in the Act. Case management procedures that are adopted by courts seek to give effect to the overarching purpose in the Act in a manner that is fair to all parties while simultaneously advancing the administration of justice. The importance of compliance with case management procedures is reflected in the extensive sanctions that courts can impose under the Act in cases of non-compliance.
120 Parties conducting proceedings in a managed list … must do all they can to comply with the court’s timetabling orders. If they do not, they face the risk that orders will be made which may affect the manner in which, and the extent to which, they can conduct their case. For example, as appears from [26] above, under s 51 of the Act, the court may order that a party be precluded from relying on particular evidence. Parties should not seek to avoid compliance with an order by adopting an artificial interpretation of the order or by taking advantage of any ambiguity. Rather, they should endeavour to comply with the intended purpose of the order.”
(Footnotes omitted.)
[3][2015] VSCA 172
25In Hodgson v Amcor Ltd; Amcor Ltd v Barnes,[4] Vickery J identified a non-exhaustive list of discretionary factors which the Court ought to consider in an application to dismiss a claim on the basis of non-compliance with case management and discovery orders. His Honour stated:
[4](2011) 32 VR 495 at [99]
“All matters relevant to the exercise of the power should be weighed. In different cases, the factors may assume greater or lesser significance. Such factors may include the following considerations, which are examples derived from the case law examined:
(a) the effect of the contravening conduct on the just resolution of the real issues in the proceeding in an efficient, timely and cost-effective manner;
(b) the extent of any delay caused by the contravening conduct and the prejudice associated with it, and whether the delay was inordinate and inexcusable;
(c) whether the history of non-compliance by a party is such as to indicate an unwillingness or inability to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period. In determining whether the defaulting party is either subjectively unwilling to co-operate or, for some reason, is unable to do so, the cumulative effect of the party’s defaults may be taken into account;
(d) whether the non-compliance is continuing and is continuing to occasion unnecessary delay, expense or other prejudice to the other party (that is, a significant continuing default which continues to impose an unacceptable burden on another party);
(e) the prejudice which might reasonably be assumed to follow for the other party arising from the contravening conduct, and that which is shown to have arisen;
(f) the extent to which the achievement of efficiency in the conduct of proceedings by other parties in other cases before the Court have been compromised;
(g) the veracity and reasonableness of any explanation given for the contravening conduct;
(h) whether the default was intentional or the product of contumelious conduct;
(i) whether any alternative remedy by way of a lesser, but equally efficient, sanction is available;
(j) whether the contravening conduct has rendered it impossible to conduct a fair trial, or would make any judgment in favour of the offending party unsafe, or which would render any further proceedings unsatisfactory and prevent the Court from doing justice, or there is a real risk of any of these things happening; and
(k) whether the object of the order which has been contravened is ultimately secured (eg. the late production of a document which has been withheld on discovery).”
26Further, r1.14 of the County Court Civil Procedure Rules 2018 provides as follows:
“(1) In exercising any power under these Rules the Court—
(a) shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined;
(b) may give any direction or impose any term or condition it thinks fit.
(2) The Court may exercise any power under these Rules of its own motion or on the application of a party or of any person who has a sufficient interest.”
27This Court has inherent powers to control and supervise its processes to prevent injustice pursuant to r24.05:
“Nothing in this Order affects the inherent power of the Court to dismiss any proceeding for want of prosecution or to order that upon the failure of a party to do any act or to take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step the proceeding shall be dismissed or the defence struck out and that judgment may be entered or that there be judgment accordingly.”
28In this regard, cases involving conduct which has rendered it impossible to hold a fair trial may warrant a striking out order. The ability of this Court to conduct a fair trial in this proceeding will be discussed in further depth in due course.
Principles applicable to late amendment applications
29The principles upon which an application to amend a statement of claim close to, or during the course of, a trial are not in dispute. They are conveniently set out by J Forrest J in Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s London & Ors (Ruling).[5] At paragraphs 4 to 9, his Honour said the following:
[5][2011] VSC 370
“4The power to grant an amendment to the particulars is contained in Order 36, Rule 1(1) which relevant parts read as follows:
For the purpose of
(a) determining the real question and controversy between the parties to any proceeding the court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.
5 The authorities relevant to an application such as this are well-known; I mention a few: The Commonwealth v Verwayen, State of Queensland v JL Holdings Pty Ltd, Etna v Arif, Howarth v Adey and Aon Risk Services Australia Ltd v Australian National University (‘Aon’).
6 With the decision in Aon the High Court has emphasised that applications such as these should not be granted without appropriate judicial scrutiny and should not be granted as a matter of course. In Aon, the High Court held as follows, as I set out (with one change) in Perpetual Trustees Australia Limited v Schmidt & Anor:
(a) courts must now consider the wider public interests and the efficient use of limited court resources when deciding whether to grant applications to amend pleadings;
(b) parties will not be permitted to raise any arguable case in any stage of proceedings subject only to payment of costs; and
(c) amendments that produce delay impact on the entire court system and affect parties desirous of utilising that particular court system.
7 In Aon, the High Court said:
‘An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases…
A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to the parties having a sufficient opportunity to identify the issues they seek to agitate.
In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. (emphasis omitted)’
8 Aon demonstrates that there are a number of factors relevant to an application such as this. For instance:
(a) whether there will be a substantial delay caused by the amendment;
(b) the extent of any wasted costs;
(c) whether there is an irreparable element of unfair prejudice caused by the amendment;
(d) concerns of case management arising from the stage in the proceeding when the amendment is sought;
(e) whether the grant of the amendment will lessen public confidence in the judicial system; and
(f) whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.
9 It is, however, to be remembered that the primary question still remains: what do the interests of justice dictate? Aon reminds us that the prism through which these interests are viewed is wider than just that of the moving party.”
(Footnotes omitted.)
Analysis
30A plaintiff in a proceeding has a right to invoke the jurisdiction of the Court. It naturally follows that in a complex commercial world the certainty that the world of commerce requires dictates that the jurisdiction of the Court should be exercised pursuant to well-articulated and well worked-out rules. The courts have set out such rules and processes in order to provide natural justice to both parties in the litigation process.
31The system relies upon parties complying with orders and rules of the Court to provide natural justice and to utilise the Court’s scarce resources in an effective manner. Under these circumstances it is critical that parties comply with their obligations under the Civil Procedure Act and properly prepare a matter for trial.
32As noted by Dixon J (as his Honour then was) in Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 2),[6] courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting upon the civil justice system. The balance therefore needs to be redressed.
[6][2011] VSC 518 at [34] citing Lord Justice Jackson, Review of Civil Litigation Costs Final Report – Implementation of Recommendation 29 (7 February 2011) Judiciary of England and Wales
33In the circumstances of this case it is clear that both parties have patently failed to do that. While substantial cause of the delay seems to lie at the feet of the defendants, the plaintiff in this case had a heightened obligation to take whatever steps required of it, including those outstanding pursuant to orders and directions of the Court to cause the matter to be ready for trial. It is plain it has failed to do so. If a plaintiff wishes to invoke the jurisdiction of the Court it is free to do so, but only in compliance with the legislative requirements under the Civil Procedure Act as well as the Court’s orders.
34The relevant considerations that I should take into account ultimately, while bearing in mind the foregoing principles relating to what is the equivalent of a late application by a plaintiff to amend its claim, are those set out in Ultra Thoroughbred Racing. I will now consider each of those factors in turn.
The nature of the application
35I have, in introduction to these reasons, set out the nature of the application. As I understand it, it is to add an application seeking loss and damage for the improper lodgement of a caveat. The application itself is not one which has previously been articulated between the parties. As I understand the nature of the application and the loss and damage which is sought to be agitated, it has complexity. It is not simply the usual case for improper lodgement of a caveat which might constitute, for example, lost holding costs, or the cost of finding bridging finance or something of that nature. I am told that in this case it concerns the loss of the plaintiff’s companies and/or properties. It was put from the Bar table by counsel for the plaintiff that he understood the claim to require some complex consideration of the nature of the corporate interests held by the defendants which he says were lost, and no doubt this will require consideration, further discovery and a further set of pleadings. This is all in the context of a case which was commenced in 2020 and has had multiple vacated trial dates. I also note that the current defence and counterclaim as filed already denies that the primary contractual document on which the plaintiff relies is a forgery. At paragraph 5 of the current Amended Defence, the defendants allege:
“…the alleged loan deed is a forgery and that the alleged signatures of the second defendant (which are identical to each other) on such documents have been digitally copied and affixed to the alleged loan deed.”
36There is a reasonably-articulated amended counterclaim already filed. Mr Bobko has made no submission to explain why the claim for damages for the improper lodgement of a caveat, which I infer may spring off the allegedly forged Loan Deed, was not pleaded at an earlier date. Given that the defendants have taken the view, from the date of their amended defence and counterclaim, which was filed on 15 February 2021, that the signatures on the Deed were forged, if it is the case that the caveat claim springs from that allegedly forged document, then it ought to have been apparent that any caveat that follows from that document was improperly lodged.
37I do note Mr Bobko has not articulated to me how the improper caveat lodgement claim is to be put. The only person who articulated it was Mr James and in reply Mr Bobko did not enlighten me as to how that claim was to be put. The best that I can do under the circumstances is infer what I can from what has been put. Even if that were not the case and the caveat springs from some other transaction, again the defendants have not articulated to me how that claim arises and how it is put, much less why it was not pleaded at an earlier date.
When the application was made
38It is a matter of some concern that notwithstanding the defendants are in breach of orders on multiple occasions to file this amended defence and counterclaim and expert report, no application has been made formally by the defendants until this morning to further extend the date for the filing of those documents.
39As I have indicated above, the matter came on as a consequence of the Court’s concern as to the state of non-compliance of the parties. In the end, that resolved to an application by Mr Bobko to extend the time of the file and service of the expert report and the amended pleading. Given the trial date is currently set for 30 September 2025, I might have been inclined to the view that there is still adequate time to bring this matter into order on truncated deadlines so as to maintain the trial date. However, it is the case that the application is made extremely late.
Explanation for lateness of the application
40Mr Da Gama, the solicitor for the plaintiff, deposes to the difficulties he has experienced in obtaining expert reports to file going to the question of loss and damage. In discussion with Mr Bobko, he accepted that a different way of approaching the pleading question would have been for his client to have pleaded the relevant cause of action, pleaded relevant heads of damage and pleaded that particulars of loss and damage would be provided by way of expert report.
41Had that been done, the issue of pleadings could have been advanced at an earlier stage and the question of expert evidence may have had a different consequence.
42However, as to the explanation, Mr Bobko submitted that Mr Da Gama had done everything reasonably to cause the experts to have completed their reports in a timely fashion. I accept that Mr Da Gama had difficulties in getting the expert material completed. However, I do not accept that he has done everything he reasonably could. It is apparent that some time in the journey between 26 April 2024, when Judge Burchell extended the date for expert evidence to be provided to now, Mr Da Gama could and perhaps should have determined that his experts were not responsive enough and therefore fresh experts should be engaged. It is also apparent that there have been long gaps between steps taken to cause those experts to get their material completed. At one level it might be said, as some authorities indicate, that even an explanation which might be considered insufficient is nevertheless an explanation for the purposes of the High Court in Aon, however I am concerned that the explanation provided in this case really was not sufficient.
Prejudice
43Mr Bobko plainly and, to his credit, frankly conceded that, if he is now permitted to file and serve the expert evidence and file and serve the amended pleading, in order not to cause prejudice to the plaintiff, this will necessarily require that the trial date be vacated. That is a cause of very substantial concern.
44Mr James’ position was that his client might be prepared to countenance the late filing of material as long as the trial date was not vacated, but otherwise opposed the late filing of the material. As I understood that submission, it really goes to the question of prejudice. I understood the submissions to mean that, to the extent that a trial date would be vacated for the fourth time, this would cause substantial and unacceptable prejudice to his client. I agree.
45I am mindful of the fact that precluding the defendants from filing its amended pleading will deprive it of the ability to prosecute their additional claim. However, it is difficult for me to assess the effect of this given that the pleading has not been put before me nor has the defendant adequately described the cause of action. Under those circumstances, I can only give this factor slight weight in favour of the defendants.
46Given this, it seems to me that the prejudice to the plaintiff of not having its proceeding tried, but to be adjourned for a fourth occasion substantially outweighs the prejudice to the defendants
Delay
47It is my view that this proceeding has suffered a lamentable failure by both parties to have caused the proceeding to be conducted efficiently and without delay. Leaving aside what happened prior to Mr Bobko’s current instructors coming onto the record in April 2024, the delay since April 2024 to now is quite unacceptable. At the end of the day, all that was required to be done by the defendants was to prepare, file and serve an expert report and a pleading. This has taken seventeen months from the date Judge Burchell made her orders, during which time I further vacated a trial date. This delay is simply unacceptable. To the extent that the authorities might suggest that delay in and of itself is insufficient to cause sanctions to be applied, but rather what ought to be considered is delay coupled with prejudice, it is my view that there is prejudice caused by this further delay, that being that it will cause a further vacation of a trial date.
Interests of justice
48The question of the interests of justice weighs heavily upon me, as does the question of delay and prejudice. Parties can and should regard their overarching obligations seriously. The Civil Procedure Act was enacted in 2010 to try and stamp out the delays that were being experienced in the conduct of civil litigation at that time. So much is apparent from the terms of the Act itself and from the Court’s dicta, some of which I have set out above. The interests of justice are brought into profound disrepute when parties ignore court directions. The interests of justice are further brought into profound disrepute when parties’ conduct leads to trial dates being fixed and vacated on three and four occasions. Court resources are scarce. Every time a trial date is fixed, other litigations waiting to have their trials fixed are pushed further down the queue. The plaintiff and defendants in this case have paid no regard to the Court’s deadlines, and I consider the interests of justice have been profoundly damaged by their conduct.
Conclusion
49For all of the reasons set out above, it is my view that if I were to permit the defendants to file and serve an amended defence and counterclaim now with the necessary consequence that the trial date will be vacated again, I will be acting contrary to the principles that I have set out above. For those reasons I will deny the application for leave to file and serve a further pleading by the defendants. The defendants will be required therefore to proceed to trial on the current filed pleading.
50Mr Bobko has informed me that the matters touched on by the expert report which his client will be in a position to file and serve on Monday are relevant to the currently pleaded claims in the Amended Defence and Counterclaim. Under those circumstances, I am prepared to extend the time for that expert report to be filed, but I will only do so subject to a self-executing order.
SCHEDULE OF PARTIES
BETWEEN
| Rakesh Palta | Plaintiff |
| and | |
| Iceland Properties Pty Ltd (ACN 614 893 202) | First defendant |
| and | |
| Chashampal Singh Gill | Second Defendant |
| and | |
|
|
|
| AND BETWEEN | |
| Iceland Properties Pty Ltd (ACN 614 893 202) | First plaintiff by counterclaim |
| and | |
| Chashampal Singh Gill | Second plaintiff by counterclaim |
| and | |
| Iceland Cold Storage Pty Ltd (ACN 601 489 927) atf the Iceland Cold Storage Trust | Third plaintiff by counterclaim |
| and | |
| Rakesh Palta | First defendant by counterclaim |
| and | |
| Supriya Investments Pty Ltd (ACN 614 897 326) | Second defendant by counterclaim |
| AND BETWEEN | |
| Supriya Investments Pty Ltd (ACN 614 897 326) | Plaintiff by second counterclaim |
| and | |
| Iceland Cold Storage Pty Ltd (ACN 601 489 927) atf the Iceland Cold Storage Trust | First defendant by second counterclaim |
| and | |
| Chashampal Singh Gill | Second defendant by second counterclaim |
- - -
Certificate
I certify that these 21 pages are a true copy of the judgment of His Honour Judge Wise delivered on 18 July 2025.
Dated: 23 July 2025
Stephanie Slade
Associate to His Honour Judge Wise.
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