Randwick CC v Burnett and Burnett - [2004] NSWSC 715

CITATION: Randwick CC v Burnett & Burnett [2004] NSWSC 715

HEARING DATE(S): 12/07/04, 13/07/04, 14/07/04, 15/07/04, 16/07/04, 21/07/04, 22/07/04, 18/08/04

JUDGMENT DATE:
12 October 2004

JUDGMENT OF: Shaw J at 1

DECISION: (1) Accordingly, I propose to order and direct that: (a) leave to amend be granted as sought by the plaintiff and that the defence to the cross claim be amended accordingly; (b) subject to any other or further arguments, that the costs of this application for amendment (both in respect of the written and oral submissions) should be the costs of the defendants in the proceedings. (2) Further directions should now be given with a view to the just and expeditious dispossession of this matter, including the possible recall of witnesses so as to allow procedural fairness to the defendants in relation to the amendment that I have granted.

CATCHWORDS: Interlocutory application - Application by plaintiff to amend its pleadings - Amendment arising out of cross claim filed by defendants to the effect that the defendants were entitled to certain gym equipment left in the premises and that, despite their request, they had been refused access to the equipment and the premises

LEGISLATION CITED: 9 Geo IV c 11
Impounding Act 1898 (NSW)
Impounding Act 1993 (NSW) ss 3(a), 15, 20(5), 45(2),
Legal Profession Act, 1987 (NSW) s198L
Supreme Court Rules 1970 (NSW) Pt 20, r 1(2)

CASES CITED: Baillie v Auburn M C (1919) 5 LGR 9
Banks v Ferrari [2000] NSWSC 874 (7 August 2000; revised 4 September 2000)
Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84
Hibbert v McKiernan [1948] 2 KB 142
Horton v Jones & Ors (No 2) (1939) 39 SR (NSW) 305
Ketteman v Hansel Properties Ltd [1987] 1 AC 189
Queensland v J L Holdings Pty Ltd (1977) 189 CLR 146
Woolworths v Waverley Council [1999] NSWSC 308 (20 April 1999)

PARTIES :
Randwick City Council
John Robert Burnett & Carmel Burnett

FILE NUMBER(S): SC 20947 of 1997

COUNSEL: R B Wilson (Plaintiff)
M J Stevens (Defendants)

SOLICITORS: Bowen & Gerathy (Plaintiff)
Corrs Chambers Westgarth Lawyers (Defendants)

- 9 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
COMMON LAW LIST

SHAW J

Tuesday 12 October 2004

20947 of 1997

RANDWICK CITY COUNCIL (PLAINTIFF)

v

JOHN ROBERT BURNETT & CARMEL BURNETT (DEFENDANTS)

JUDGMENT

1 Shaw J: This case concerns an attempt by Randwick City Council (the plaintiff) to recover rents said to be owed by the defendants in relation to a gymnasium at Heffron Park within the area of Randwick Council and which has been variously described as located in Maroubra or Matraville. The critical question, which will need to be determined in due course, is whether the defendants are personally liable for that rent or whether they are protected by some corporate entity which, in point of law, may have been obliged to pay the rent. This defence is mounted despite the fact that it seems as a matter of practical reality, that the…

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: [2004] NSWSC 715
Decision Date: 12 October 2004

CaseChat Overview and Summary

In the matter of Randwick CC v Burnett and Burnett, the plaintiff, Randwick Council, brought an interlocutory application seeking to amend its pleadings. The defendants, Burnett and Burnett, had filed a cross claim, asserting that they were entitled to specific gym equipment left in the premises and that they had been denied access to both the equipment and the premises despite their requests. The application was heard in the Supreme Court of New South Wales. The legal issues before the court centred on whether the plaintiff should be permitted to amend its pleadings to address the cross claim and if such an amendment would prejudice the defendants' right to a fair trial. The court considered whether the proposed amendment related back to the original pleadings and whether there was any undue delay or prejudice to the defendants if the amendment were allowed.

The court found that the proposed amendment was closely related to the original pleadings and did not introduce new matters that were not previously contemplated. The amendment aimed to address the defendants' cross claim, which was an integral part of the dispute. The court also noted that there was no undue delay in seeking the amendment and that the defendants had not demonstrated any prejudice that would result from the amendment. Given these considerations, the court ruled in favour of the plaintiff, allowing the amendment of the pleadings. The court's decision was based on the principles of fairness and the need to ensure that all relevant issues were properly addressed in the proceedings.

The court's ruling allowed the plaintiff to amend its pleadings to include the cross claim filed by the defendants. This decision ensured that all aspects of the dispute could be fully litigated, and the court could make a comprehensive determination on all claims and defences. The court emphasised the importance of allowing amendments that are necessary to address all relevant issues in the case and to prevent any party from being unfairly prejudiced. The final orders of the court permitted the plaintiff to amend its pleadings to include the defendants' cross claim and directed the parties to proceed with the amended pleadings in the ongoing proceedings.

Orders