Read v McEwen & Anor

[2007] NSWSC 825

CITATION:	Read v McEwen & Anor [2007] NSWSC 825
HEARING DATE(S):	26/07/07
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	26 July 2007
DECISION:	Leave to amend defence granted.
CATCHWORDS:	PROCEDURE - Miscellanous procedural matters - Amendments - Application at trial to amend defence to withdraw an admission - Earlier successful application to amend defence to cross claim raising new issues including a limitation point - Prejudice limited to preparation of case on assumption no evidence needed on admitted issue - Whether all issues between the parties should be ventilated
CASES CITED:	SLE Worldwide v WGB & Ors [2005] NSWSC 816 Drabsch v Switzerland General Insurance Co Ltd, NSWSC, unreported, 16 October 1996 Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 Queensland v JL holdings Pty Ltd (1996-1997) 189 CLR 146 Ridolfi v Rigato Farms Pty Ltd (2001) 2 Qd R 455
PARTIES:	Yvonne Read - Plaintiff Jeffrey John McEwen - First Defendant Jedda Kylie McEwen - Second Defendant
FILE NUMBER(S):	SC 1598/07
COUNSEL:	Mr DA Smallbone/ Mr J Cohen - Plaintiff Ms M Dulhunty - First and Second Defendants
SOLICITORS:	Michael Lewis & Assoicates Solicitors - Plaintiff Coyne & Whittemore - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 26 JULY 2007

1598/07 YVONNE READ v JEFFREY JOHN McEWEN & ANOR

EX TEMPORE JUDGMENT

1 There is before me an application to amend the defence. One of the matters included in that amended document is the withdrawal of admissions that had been made previously.

2 That matter was not elicited from Jeffrey John McEwen, the first defendant, when an affidavit was sworn by him on 18 May 2007.

3 Reference was made to SLE Worldwide v WGB & Ors [2005] NSWSC 816 at 13-14 [55] where White J set out the principles enunciated by Santow J in Drabsch v Switzerland General Insurance Co Ltd, NSWSC, unreported, 16 October 1996 at 7-8. His Honour observed that where a party under no apparent disability makes a clear and distinct admission that is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the Court, an application to withdraw the admission, especially at appeal, should not be granted freely. For this proposition, reference was made to Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738. Santow J went on to say that the question was one for the reviewing judge to consider in the context of each particular appeal, with the general guideline being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded.

4 Santow J gave some examples. His Honour said that it was usually appropriate to grant leave to withdraw an admission where it was shown that the admission was contrary to the actual facts, or was made inadvertently without due consideration of material matters. Leave might be refused where the other party had changed its position in reliance on the admission.

5 The only change of position that is put forward in opposition to the application is that Yvonne Read, the plaintiff, had prepared her case on the basis that she need not prove the matters the subject of the admission.

6 White J points out in SLE at 14 [56] that the principles enunciated by Santow J remain the correct statement of the law after the High Court decision in Queensland v JL holdings Pty Ltd (1996-1997) 189 CLR 146 in which the High Court determined that the justice of the matter was the paramount consideration that should guide a judge in the exercise of his or her discretion.

7 In Ridolfi v Rigato Farms Pty Ltd (2001) 2 Qd R 455, the Queensland Court of Appeal considered an application to withdraw a deemed admission arising from the failure to dispute a fact in a notice to admit facts. The Court said there was no principle that admissions made or deemed to have been made might always be withdrawn subject to payment of costs. The discretion was broad and unfettered.

8 Over a contested objection, I gave leave to Ms Read to file an amended defence to the cross-claim of Mr and Mrs McEwen. It raised a number of new issues including the issue that the cause of action enunciated in the cross-claim was out of time as it had not occurred within six years prior to the commencement of the cross-claim. I did that on the basis of allowing all issues between the parties to be litigated.

9 In my view, in the exercise of the wide discretion with respect to the withdrawal of admissions, I should approach the application in the same way I approached the application for leave to file an amended defence to the cross-claim and I grant leave to file in court an amended defence initialled by me, dated by me and placed with the paper.

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