Ranieri v Nominal Defendant
[2000] NSWSC 675
•14 July 2000
CITATION: Ranieri v Nominal Defendant & Ors [2000] NSWSC 675 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20860 of 1995 HEARING DATE(S): 11 July 2000 JUDGMENT DATE: 14 July 2000 PARTIES :
Jennifer Kathryn Ranieri (Plaintiff)
v
Nominal Defendant (First Defendant) & Ors.
JUDGMENT OF: Master Malpass
COUNSEL : Mr D Hooke/Ms C Ross (Plaintiff)
Mr F McAlary QC/ Mr D Ronzani (First Defendant)SOLICITORS: Robson & Oliver (Plaintiff)
Abbott Tout (First Defendant)
CATCHWORDS: Leave to re-open - discretionary considerations. LEGISLATION CITED: N/A CASES CITED: Metway Leasing Limited v Barrolon Pty limited & Ors (Unreported, 27 April 1993).
Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235.
Smith v New South Wales Bar Association (1992) 176 CLR 256.
Suttor v Gundowda Proprietary Limited (1950) 81 CLR 419.
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471.DECISION: See paragraph 17.
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER MALPASS
FRIDAY 14 JULY 2000
20860 of 1995 JENNIFER KATHRYN RANIERI v NOMINAL DEFENDANT & ORS
JUDGMENT
1 The trial of these proceedings took place earlier this year. The evidence had been received and submissions had been made by February 2000. Judgment was reserved. A judgment was delivered on 9 March 2000. There were certain heads of damage which remained undetermined. One of these was a claim made in relation to the matter of home alterations.
2 In relation to that matter, certain findings were made. In the judgment, the view was expressed that the calculation to be allowed for this head of damage would be best done by general assessment. The parties were given the opportunity to put further submissions as to the global sum to be allowed.
3 When the proceedings were listed for further mention, counsel for the first defendant foreshadowed an application to re-open. Subsequently, a Notice of Motion was filed on 1 May 2000. It was heard on 11 July 2000.
4 The Notice of Motion seeks inter alia an order that:-
“The First Defendant have leave to re-open its case limited to the claims made by the plaintiff concerning her housing needs subject to the terms of the reasons for judgement delivered 9 March 2000;”
5 In support of the application, the first defendant has read two affidavits. There is an affidavit sworn by Mr Hesse (an architect). There is an affidavit sworn by Mr Baker (a chartered builder and cost consultant). The plaintiff has not adduced any evidence.
6 At the trial, the plaintiff adduced evidence of material provided by her expert (Mr Watts). This material was not challenged by the first defendant. There was a purported tender by the first defendant of a bundle of documents. It is the recollection of counsel for the plaintiff that this bundle contained material provided by both Mr Hesse and Mr Baker. As documents contained in the bundle had not been served, there was an objection to the tender. In these circumstances, the first defendant chose not to press the tender. Ultimately, it did not adduce any evidence on the matter of home alterations.
7 There was no real dispute as to the approach to be taken by the court in dealing with applications of this nature. The court has a discretion. The discretion is to be exercised having regard to the circumstances of the particular case before it and so that justice is best served between the parties. The applicant bears the onus of demonstrating an entitlement to the relief sought.
8 The first defendant has referred to Suttor v Gundowda Proprietary Limited (1950) 81 CLR 419. In Metway Leasing Limited v Barrolon Pty limited & Ors (Unreported, 27 April 1993) I referred to a number of the relevant decisions on the question. The plaintiff has referred to Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 and Smith v New South Wales Bar Association (1992) 176 CLR 256.
9 The first defendant contends that there is similarity in what was considered in Suttor and the present case. In Suttor , the subject matter of the re-opening was said to be grounded on the trial judge’s findings. The first defendant says that the proposed evidence arises out of what has been said in the judgment and that it would be of assistance to the court in assessing the global sum. The plaintiff disputes these contentions. On her behalf, it is said that the defendant had opportunity to lead evidence of this nature at the trial and failed to do so. Further, it is said that such failure has not been explained and that if the application is granted there will be delay and prejudice suffered by her.
10 All of the material which the first defendant would hope to adduce is yet to be gathered. The substance of what appears in the affidavits would have to be the subject of a report from each of the two experts. Also, it is contemplated that further evidence be obtained on the matter of maintenance costs.
11 If the application is granted, there will be further delay in the finalisation of these proceedings. It could be expected that the plaintiff may cross-examine both experts. She may wish to adduce evidence in reply thereto. At least a further day of hearing time may be involved in dealing with the material. It is probable that such evidence could not be taken until some time much later in the year convenient both to the court and counsel.
12 Although liability ceased to be an issue during the trial, no advance has been made by the first defendant in relation to those heads of damage which have been determined. There is no evidence as to what payments are being made by the first defendant. There is a dispute between the parties as to what in fact has been done. In the course of submissions in reply, counsel for the first defendant did make an offer in general terms by way of condition to the granting of relief.
13 I am not persuaded that the proposed evidence does arise out of what has been said in the judgment. After all, the judgment did merely give the opportunity for the making of further submissions relevant to the assessment of the proposed global sum. The proposed evidence is material which could have been adduced at the trial. There is no satisfactory explanation for the failure to take that course. The granting of the application will lead to further delay which may occasion prejudice to the plaintiff.
14 There is no evidence of actual prejudice. However, it seems reasonable to accept that further delay in the finalisation of these proceedings will inter alia continue to postpone the implementation of the plaintiff’s plans for the future.
15 Little has been said about the general offer made on behalf of the first defendant. At best, it can go some way towards alleviating the position of the plaintiff.
16 In my view, the first defendant has failed to discharge the relevant onus. In the circumstances of the case, I consider that justice is best served by a refusal of the application.
17 The Notice of Motion is dismissed. The first defendant is to pay the costs of the Notice of Motion. The exhibit may be returned.**********
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