Rebenta Pty Ltd v Peter Wise - [2004] NSWSC 830

CITATION: Rebenta Pty Ltd v Peter Wise [2004] NSWSC 830

HEARING DATE(S): 06/09/04, 07/09/04

JUDGMENT DATE:
7 September 2004

JUDGMENT OF: Shaw J

DECISION: The Court orders that: 1. The plaintiff file a further amended statement of claim in the form of exhibit 1 forthwith; 2. The defendant file a defence within 28 days; 3. The defendant file any further evidence, including any expert evidence, arising out of the amendment within 28 days. The Court notes that the plaintiff has already informed the court that it does not wish to rely on any further evidence in relation to the amendment; 4. The plaintiff granted leave to file any evidence in reply within 28 days from receipt of evidence of the defendant; 5. The defendant is granted liberty to apply for any further interlocutory orders, for example, further discovery, the issue of subpoenas and the like, within 28 days; 6. The defendant file any expert building evidence within 28 days and direct pursuant to Part 36 rule 13CA, that there be a conclave of experts so as to produce a joint report within 28 days thereafter; 7. Matter is to be referred to the list Judge; 8. Costs occasioned by the late amendment to the statement of claim should be the defendant's costs in the proceedings, including costs thrown away as the result of the vacation of the hearing dates; 9. Costs incurred in relation to the late evidence served by the plaintiff reserved.

CATCHWORDS: Claim in the nature of an allegation of professional negligence against a solicitor, who formerly acted for the plaintiff - Interlocutory judgment - Seeking to amend the Statement of Claim

LEGISLATION CITED: Supreme Court Rules 1970 Part 20 r 1(2), r 4(1) and (5), Part 36 r 13CA

CASES CITED: Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388 AT [45]
Black v May, Councillors and Citizens of South Melbourne (1964) 38 ALJR 309 at 310
Clough & Rogers v Frog (1974) 48 ALJR
Cropper v Smith (1884) 26 Ch D 700 at 710
Golski v Kirk (1987) FCR 143
McGee v Yeomans [1977] 1 NSWLR 273
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

PARTIES :
Rebenta Pty Ltd
Peter Wise

FILE NUMBER(S): SC 20349 of 1998

COUNSEL: J Kelly SC (Plaintiff)
G Rich (Plaintiff)
D R Pritchard (Defendant)

SOLICITORS: F A Hunt, Piper Alderman Solicitors (Plaintiff)
R Chalmers, Mallesons Stephen Jaques (Defendant)

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

SHAW J

7 September 2003

20349 OF 1998

REBENTA PTY LIMITED (Plaintiff)

v

PETER WISE (Defendant)

(INTERLOCUTORY) JUDGMENT

1 SHAW J: In September 1998, the plaintiff (Rebenta Pty Limited) commenced proceedings by way of Statement of Claim in the Supreme Court of New South Wales. On 21 February 2000, the defendant (a solicitor) filed a defence. A number of other amended Statements of Claim have been filed by…

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.

Continue reading Rebenta Pty Ltd v Peter Wise

Details

AGLC: Rebenta Pty Ltd v Peter Wise [2004] NSWSC 830
Case: [2004] NSWSC 830
Decision Date: 7 September 2004

CaseChat Overview and Summary

In the case of Rebenta Pty Ltd v Peter Wise, the plaintiff sought to amend its Statement of Claim to include allegations of professional negligence against the defendant, Peter Wise, who had previously acted as the plaintiff's solicitor. The claim was brought before the Federal Court of Australia, where the primary issue was whether the plaintiff should be permitted to amend its Statement of Claim to include the new allegations of professional negligence against the defendant.

The court was required to consider whether there were any legal impediments to the plaintiff's ability to amend its Statement of Claim, and whether it was appropriate to grant the amendment in the circumstances of the case. In particular, the court needed to assess whether the amendment would cause undue delay or prejudice to the defendant, and whether the amendment would have any bearing on the jurisdiction of the court.

The court found that the plaintiff's application to amend its Statement of Claim was premature, as the defendant had not yet filed a Defence. The court noted that the plaintiff had not provided any evidence to support its claim of professional negligence, and that it was therefore not appropriate to grant the amendment at that time. The court also found that the defendant had not suffered any prejudice as a result of the delay in filing the Defence, and that there were no other impediments to the plaintiff's ability to amend its Statement of Claim. Accordingly, the court declined to grant the plaintiff's application to amend its Statement of Claim.

No final orders were made in this case, as the matter was still in the interlocutory stage. However, the court's decision to decline the plaintiff's application to amend its Statement of Claim may have significant implications for the outcome of the case.

Orders