Permanent Trustee Co Ltd v Gulf Import and Export Co - [2006] VSC 110

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION
PRACTICE COURT

No. 8130 of 2002

PERMANENT TRUSTEE COMPANY LTD
(ACN 000 000 993)
(As trustee under the Security Trust Deed and New South Wales Security Trust Deed each dated 25 January 1996)

Plaintiff

GULF IMPORT AND EXPORT COMPANY

EMIRATES TRADING AGENCY LLC

First Defendant

Second Defendant

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 MARCH 2006
DATE OF JUDGMENT:	24 MARCH 2006
CASE MAY BE CITED AS:	PERMANENT TRUSTEE CO LTD V GULF IMPORT AND EXPORT CO. & ANOR
MEDIUM NEUTRAL CITATION:	[2006] VSC 110

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PRACTICE AND PROCEDURE – Appeal from a Master – Failure to file within time a notice of dispute in response to a notice to admit – Whether defendants should have leave to withdraw deemed admissions – Whether a genuine dispute in relation to the facts and documents in question – Appeal allowed – Supreme Court Rules, r.35.03(3) and r.35.05(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Jopling QC with Mr J. Styring	Minter Ellison
For the Defendants	Mr R. Garrett QC with Mr T. Thomas	Aitken Walker & Strachan

HIS HONOUR:

The issue before me on this appeal from a Master of the Supreme Court is whether (as the Master determined) the defendants should be allowed to withdraw certain admissions earlier made by them by inadvertence. The Master having granted the defendant’s application, the plaintiff seeks by this appeal to have that decision reversed. It submits that the Master failed to take into account a relevant circumstance – namely, that the Court should not allow deemed admissions to be withdrawn where the facts and documents deemed admitted are not themselves in contention.

Order 35 of the Supreme (General Civil Procedure) Rules 1996 provides for the admission of facts and documents. Its purpose is to assist in the identification of matters not in dispute, and to avoid the costs of proving those matters. It is to the obvious advantage of litigants and the court that time and money not be unnecessarily expended by calling, at the trial, evidence that is not in genuine contention. Indeed, it may properly be said that, in general, the interests of justice are thereby best served.

It may be helpful to refer to such of the rules as are of particular relevance to the unusual circumstances of this case. Rule 35.03 provides that a party may serve on another party a notice stating that unless that other party, within a time to be expressed in the notice, disputes the facts specified, that party shall – for the purpose of the proceeding only – be taken to admit those facts. Then, if the party served with the notice does not – within the time allowed for that purpose – dispute any fact by himself serving notice of such dispute, he shall be taken to admit that fact. A similar provision is, by r.35.05, made for the admission of documents. By…

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: [2006] VSC 110
Decision Date: 24 March 2006

CaseChat Overview and Summary

Permanent Trustee Co Ltd sought to appeal a decision by a Master of the Supreme Court of New South Wales, which had ruled that the defendants, Gulf Import and Export Co, should be granted leave to withdraw their admissions made under the Supreme Court Rules. The plaintiffs had issued a notice to admit certain facts, to which the defendants had failed to respond within the time stipulated. Consequently, the plaintiffs had taken the admissions as conceded. The defendants later sought to withdraw their admissions, arguing that there was a genuine dispute regarding the facts and documents in question. The Master allowed the defendants' application, and the plaintiffs appealed this decision.

The primary legal issue for the court was whether the defendants should be granted leave to withdraw their admissions under the Supreme Court Rules. Specifically, the court had to determine whether the defendants had a genuine dispute about the facts and documents in question, and whether the defendants' delay in filing a notice of dispute was excusable. The court also had to consider the implications of the defendants' failure to respond to the notice to admit and the effect of the deemed admissions on the proceedings.

In determining the appeal, the court considered the relevant provisions of the Supreme Court Rules, specifically rules 35.03(3) and 35.05(3). The court found that the defendants had failed to file a notice of dispute within the time allowed, and that their delay was not excusable. However, the court also found that there was a genuine dispute regarding the facts and documents in question, and that the defendants' delay did not prejudice the plaintiffs. The court held that the defendants should be granted leave to withdraw their admissions, as the primary purpose of the rules was to resolve disputes justly and efficiently. The court found that the defendants' delay did not significantly prejudice the plaintiffs, and that allowing the defendants to withdraw their admissions would not cause substantial injustice.

The appeal was allowed, and the decision of the Master was set aside. The court remitted the matter to the Master for further consideration, with directions to allow the defendants to withdraw their admissions and to proceed with the trial of the genuine issues in dispute. The court did not make any orders as to costs.

Orders