| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 9311 of 2005
| PERPETUAL TRUSTEES AUSTRALIA LIMITED (ACN 000 431 827) | Plaintiff |
| v | |
| MANFRED PETER SCHMIDT and VIOLET HOME LOANS PTY LTD (ACN 120 045 025) | Defendant Third Party |
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JUDGE: | J. FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29, 30 September, 1, 6 October 2009 | |
DATE OF RULING: | 10 November 2009 | |
CASE MAY BE CITED AS: | Perpetual Trustees Aust Ltd v Schmidt & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 508 | |
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PRACTICE & PROCEDURE – Addition of party at conclusion of evidence – Consequential amendment to pleadings –- Novation of agreement – Asserted transfer of obligations to third party by deed of novation - No cause of action disclosed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Moore | HWL Ebsworth |
| For the Defendant | Mr S. Marantelli | Wisewoulds |
| For the Third Party | Mr J. Wilson SC with Mr P. Bravender-Coyle | Mingos Kay Lawyers |
HIS HONOUR:
Introduction
On the afternoon of the third day of the trial, Mr S. Marantelli, counsel for the defendant, Mr Manfred Schmidt, sought to amend the counterclaim, currently against Perpetual Trustee Australia Limited (“Perpetual”), to join the third party to the proceeding, Violet Home Loans Pty Ltd (“VHL”), as a defendant to the counterclaim.
Perpetual’s claim relates to a loan to Mr Schmidt in 2004 secured by a mortgage in its favour. Mr Schmidt’s counterclaim asserts that Perpetual’s mortgage facilitator, Violet Home Loans Australia Pty Ltd (“VHLA”) acted unconscionably and/or negligently in procuring the loan.
The hearing was stood over until 6 October 2009 to enable Mr Marantelli, to prepare an amended defence and counterclaim. This was done. The draft amended defence and counterclaim (“the draft”) set out the claim against VHL in addition to several other amendments relevant to the claim against Perpetual.
On 6 October 2009, Mr J. Wilson SC announced his appearance with Mr Bravender-Coyle for VHL. Mr Wilson opposed the amendments to the pleadings on two grounds. First, that it was too late in the proceeding to do so and, secondly, it was futile to join VHL as a defendant to the counterclaim, as it was inevitable that the amended pleading would fail.
An added complication emerged in the course of discussion. Mr Wilson indicated that if VHL were joined as a defendant to the counterclaim, he would seek to allege contributory negligence by Mr Schmidt. This prompted Mr Moore, who appeared on behalf of Perpetual, to apply to amend his defence to plead contributory negligence, which had not been previously pleaded against Mr Schmidt.
Ultimately, I have concluded that VHL should not be joined as a defendant to the counterclaim, as I do not accept that a claim can be made out against it. Further, I allow the other amendments sought on behalf of Mr Schmidt and permit Perpetual to amend its defence to allege contributory negligence.
Background facts
It is only necessary for the purpose of this application to recite a small…
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- Case
- [2009] VSC 508
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the plaintiffs could add a new party as a defendant after the evidence had been presented. The court had to consider the principles of procedural fairness and the potential prejudice to the defendants if the new party was allowed to join the proceedings. Additionally, the court examined the validity of the novation deed, assessing whether it effectively transferred the obligations from the original defendants to the third party. The court needed to determine if the plaintiffs had a cause of action against the third party.
The court ruled that the addition of the third party was not permissible as it would have caused significant prejudice to the defendants, who had not been given an opportunity to respond to the claims against the new party. The court found that the procedural rules did not allow for such a late addition. Furthermore, the court held that the novation deed did not create a valid cause of action against the third party. The obligations under the original agreement had not been properly transferred, and the third party had not assumed those obligations. Consequently, the plaintiffs' claims against the third party were dismissed.
The final orders of the court were that the plaintiffs' application to add the third party as a defendant was dismissed. The claims against the original defendants were to proceed, but the claims against the third party were struck out, as no valid cause of action was established. The court emphasised the importance of adhering to procedural rules and the necessity for clear and valid novation agreements to transfer obligations effectively.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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