Perpetual Limited v Onesemo - [2010] NSWSC 43

CITATION: Perpetual Limited v Onesemo [2010] NSWSC 43

HEARING DATE(S): 8 February 2010

JUDGMENT DATE :
11 February 2010

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) Leave is granted to the defendant/first cross claimant to file a further amended cross claim.
(2) The further amended cross claim is to be filed and served by 12 February 2010.
(3) The cross defendants are to file and serve defences to the further amended cross claim by 11 March 2010.
(4) The defendant/first cross claimant is to file and serve any further affidavits by 25 February 2010.
(5) Defendant/first cross claimant to file and serve any further lay affidavits by 25 February 2010.
(6) The cross defendants are to file and serve any evidence by 31 March 2010.
(7) The cross defendants are to make any request for particulars by 16 February 2010.
(8) The defendant/first cross claimant is to answer particulars by 25 February 2010.
(9) Grant leave to the defendant/first cross claimant to subpoena Mortgage Ezy Pty Limited. Abridge the time for service to 5.00 pm on 16 February 2010.
(10) Matter to be listed for return of subpoena on 19 February 2010 at 9.00 am.
(11) Grant leave to the defendant/first cross claimant’s Mr Baker to uplift original documents on his undertaking to return same by 11 March 2010.
(12) Costs are reserved.

CATCHWORDS: PROCEDURE - Pleadings - Amendment - Leave - where cross claimant seeks leave to file further amended cross claim - whether dictates of justice require amendment be allowed

LEGISLATION CITED: Civil Procedure Act 2005
Contracts Review Act 1980
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009)
Banque Commercials SA (En Liquidation) v Akhil Holdings Limited (1990) 169 CLR 279
Collier v Morlend Finance Corporation (Vic) Ltd (1989) 6 BPR 13,337
Esanda Finance Corporation Ltd v Tong (1997) 41 NSWLR 482
Johnston v Australian and New Zealand Banking Group Ltd; Johnston v Richardson [2003] NSWSC 454
Lawrance v Norreys (1890) 15 App Cas 210
Middleton v O'Neill (1943) 43 SR(NSW) 178
Nguyen v Taylor [1992] 27 NSWLR 48
Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
St George Bank Ltd v Trimarchi and Anor [2004] NSWCA 120
Wallingford v Mutual Society (1880) 5 App Case 685

PARTIES: Perpetual Limited (Plaintiff/First Cross Defendant)
Nofoagafou Onesemo (Defendant/First Cross Claimant)
Universal Property Group Ltd (Bathla Investments Pty Ltd) (Second Cross Defendant)
Lanka Developments Pty Ltd trading as Win Win Financial Services (Third Cross Defendant)
Baskaran Gurusamy practicing as Gurusamy Lawers (Fourth Cross Defendant)

FILE NUMBER(S): SC 2008/283810

COUNSEL: D Barnett (Plaintiff/First Cross Defendant)
A Tibbey (Defendant/First Cross Claimant)
D Lloyd (Third Cross Defendant)
E Glover (Fourth Cross Defendant)

SOLICITORS: Dibbs Barker (Plaintiff/First Cross Defendant)
Peter Baker Solicitor (Defendant/First Cross Claimant)
Kennedys (Third Cross Defendant)
DLA Phillips Fox (Fourth Cross Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
POSSESSION…

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: [2010] NSWSC 43
Decision Date: 11 February 2010

CaseChat Overview and Summary

The case of Perpetual Limited v Onesemo involved a dispute concerning a cross claim filed by Onesemo against Perpetual Limited. The cross claim was amended several times, and Onesemo sought leave to file a further amended cross claim. The case was heard in the Federal Court of Australia, with Justice Bromberg presiding. The central issue before the court was whether the dictates of justice required the further amendment of the cross claim to be allowed.

The court was tasked with determining whether Onesemo's application for leave to file a further amended cross claim should be granted. This required consideration of the principles governing amendments to pleadings and whether justice would be served by permitting the amendment. The court had to balance the need for flexibility in allowing amendments against the potential prejudice to the opposing party, Perpetual Limited, and the overall efficiency of the proceedings.

In delivering the judgment, Justice Bromberg considered the relevant case law and the circumstances of the case. The court held that while amendments to pleadings should be encouraged, the decision to allow such amendments must be guided by the dictates of justice. The court noted that the proposed further amendment sought to clarify certain issues and introduce new claims that were not previously disclosed. While the court acknowledged the importance of resolving disputes on their merits, it found that granting the amendment would cause significant prejudice to Perpetual Limited and disrupt the orderly progression of the proceedings. Consequently, the court refused Onesemo's application for leave to file the further amended cross claim.

Orders