Richard Taylor v Dixon Advisory Limited - [2010] ACTSC 2

RICHARD TAYLOR v DIXON ADVISORY LIMITED
[2010] ACTSC 2 (29 January 2010)

PRACTICE and PROCEDURE – pleadings – whether admission of facts made in defence – whether proposed amended defence constituted withdrawal of admission – whether defendant should be permitted to withdraw factual admission – whether defendant should be permitted to amend defence and counterclaim after close of pleadings.

Court Procedures Rules 2006 rr 21, 483, 490, 492, 505, 507
Legislation Act 2001 s 151

Celestino v Celestino [1990] FCA 299
Reinicke v Neilson [2004] ACTSC 5
Wyer v Hunt [2005] ACTSC 15
Barker v Gifford [2005] ACTSC 55.
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Sangora Holdings Pty Ltd v Dunstan (Supreme Court of Western Australia, Full Court, 13 April 1999, unreported)
Cropper v Smith (1884) 26 ChD 700
Clough v Frog (1974) 48 ALJR 481
Drabsch v Switzerland General Insurance Co Ltd (Supreme Court of NSW, 16 October 1996, unreported)

No. SC 457 of 2009

Judge: Master Harper
Supreme Court of the ACT

Date: 29 January 2010

IN THE SUPREME COURT OF THE )
) No. SC 457 of 2009
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:RICHARD TAYLOR
Plaintiff

AND:DIXON ADVISORY LIMITED
Defendant

ORDER

Judge:  Master Harper
Date:  29 January 2010
Place:  Canberra

THE COURT ORDERS THAT:

The defendant have leave to withdraw its admissions of the facts asserted in paragraphs 2, 3 and 4 of the statement of claim.

The defendant have leave nunc pro tunc to file and serve the amended defence and counterclaim filed on 20 August 2009.

The time within which the plaintiff may file and serve a reply to the amended defence and counterclaim be extended to 19 February 2010.

The parties have liberty to apply in relation to costs on 3 days’ notice at any time until 26 February 2010.

If no application has been made by that date, the costs of the plaintiff’s application of 15 September 2009 and of the defendant’s application of 18 September 2009 be costs in the cause.

There are two applications before the Court in this action for damages for breach of the terms of a contract of employment.
The action was commenced in May 2009 by originating claim with a statement of claim attached. The plaintiff’s case is that he was employed by the defendant as a senior financial adviser under an agreement contained in a letter of 9 July 2004. It was a term of the agreement that the defendant would pay the plaintiff a quarterly bonus. The plaintiff resigned on 27 September 2008, and claims bonuses for the June and September 2008 quarters.
In June 2009, the defendant filed a defence. The defendant admitted entering the employment agreement but said that although dated July 2004 it was not signed until 19 July and was not to commence until 2 August 2004. The defendant admitted that the agreement provided for quarterly bonuses but denied that the plaintiff was entitled to bonuses for the June and September 2008 quarters. The defendant asserted…

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: [2010] ACTSC 2
Decision Date: 29 January 2010

CaseChat Overview and Summary

In the case of Richard Taylor v Dixon Advisory Limited, the plaintiff, Mr Taylor, sought a ruling on whether the defendant could withdraw admissions made in its defence and whether the defendant could amend its defence and counterclaim after the close of pleadings. The dispute was heard in the Supreme Court of New South Wales. The central issue was whether the defendant could withdraw its admissions of certain facts asserted in the plaintiff’s statement of claim and whether it could amend its defence and counterclaim following the conclusion of the pleadings.

The court considered whether the defendant's admissions were binding and if it could amend its defence and counterclaim post the close of pleadings. The court assessed the principle of finality in litigation against the flexibility required in the administration of justice. It found that the admissions were not conclusive and that the defendant could withdraw them if it could demonstrate a valid reason for doing so. Regarding the amendment of the defence and counterclaim, the court determined that while the general rule is that pleadings cannot be amended after they are closed, an exception could be made if justice so requires. The court granted the defendant leave to withdraw its admissions and to amend its defence and counterclaim nunc pro tunc, considering the circumstances of the case warranted such flexibility.

The court's orders included granting the defendant leave to withdraw its admissions, allowing the defendant to file and serve the amended defence and counterclaim, and extending the time for the plaintiff to reply to the amended defence and counterclaim. Additionally, the court set a deadline for any applications regarding costs and specified that if no such application was made, the costs of the plaintiff’s and defendant’s earlier applications would be costs in the cause.

Orders

Orders of the court

1. The defendant have leave to withdraw its admissions of the facts asserted in paragraphs 2, 3 and 4 of the statement of claim.

2. The defendant have leave nunc pro tunc to file and serve the amended defence and counterclaim filed on 20 August 2009.

3. The time within which the plaintiff may file and serve a reply to the amended defence and counterclaim be extended to 19 February 2010.

4. The parties have liberty to apply in relation to costs on 3 days’ notice at any time until 26 February 2010.

5. If no application has been made by that date, the costs of the plaintiff’s application of 15 September 2009 and of the defendant’s application of 18 September 2009 be costs in the cause.

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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