Rudenko v Rudenko and Sons Pty Ltd - [2019] NSWSC 532

Supreme Court

New South Wales

Medium Neutral Citation: Rudenko v Rudenko & Sons Pty Ltd [2019] NSWSC 532
Hearing dates: 19 March 2019
Date of orders: 10 May 2019
Decision date: 10 May 2019
Jurisdiction: Common Law
Before: Walton J
Decision:
The Court makes the following directions:

(1) The parties shall file and serve any submissions, if required, as to the disposition of the issue of leave having regard to the terms of this judgment within 7 days of the publication of this judgment.
(2) In the event the parties agree upon the appropriate orders, the plaintiff shall file consent orders within 7 days of the publication of this judgment.
Catchwords: PRACTICE AND PROCEDURE – application for leave to further amend the amended statement of claim –proposed further amended statement of claim – pleadings and particulars – directions
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Caason Investments Pty Ltd v Cao (2015) 328 ALR 396; [2015] FCAFC 94
Oswal v Apache Corporation (No 3) [2014] FCA 835
Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15
Unilever Australia Ltd v Revlon Australia Pty Ltd (No 7) [2015] FCA 137
Category: Procedural and other rulings
Parties: Genady Rudenko (Plaintiff / Applicant on Motion)
Rudenko & Sons Pty Ltd (First Defendant / First Respondent)
Wolodymyr Rudenko (Second Defendant / Second Respondent)
Representation:
Counsel:
J Spinak (Plaintiff / Applicant on Motion)
T Flaherty (Defendants / Respondents)
Solicitors:
Carroll & O’Dea Lawyers (Plaintiff / Applicant on Motion)
Russell Kelly & Associates Lawyers (Defendants / Respondents)

File Number(s): 2016/00356268

Judgment

HIS HONOUR: On 28 November 2016, the plaintiff, Genady Rudenko, filed a statement of claim seeking relief against the first defendant, Rudenko & Sons Pty Ltd, and the second defendant, Wolodymyr Rudenko aka Volodia Rudenko. The plaintiff and the second defendant have the relationship of father and son. The first defendant is a building company of which the second defendant is a director.
In broad terms, the plaintiff pleaded that he and the second defendant agreed on loans which would be repaid in full by the first and second defendant or alternatively the first defendant.
A further claim concerned a joint venture agreement whereby the plaintiff and the second defendant would jointly purchase a block of land, which the parties would own as tenants in common in equal shares. The land, it was pleaded, was sold, but the plaintiff did not receive 50% of the settlement funds.
On 4 October 2017, an amended statement of claim was filed in the proceedings after grant of leave to do so by the Registrar on that day.
By a notice of motion filed on 31 May 2018, the plaintiff sought leave to amend the amended statement of claim (“the motion”). There was initially some controversy about the form of an amended motion (unfiled) but the parties ultimately agreed that the Court…

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: [2019] NSWSC 532
Decision Date: 10 May 2019

CaseChat Overview and Summary

The matter involved a dispute between Rudenko and Rudenko and Sons Pty Ltd, with the latter being a company associated with the plaintiff. The plaintiff sought leave to further amend the amended statement of claim in an application to the court. The central issue was whether the plaintiff should be granted permission to further amend the statement of claim to address additional particulars, specifically concerning pleadings and particulars, and the directions issued by the court.

The court examined whether the proposed further amended statement of claim contained sufficient particulars to meet the requirements of the pleadings and particulars in the Uniform Civil Procedure Rules. The court also considered the directions previously given, assessing whether the plaintiff had complied with those directions and whether the proposed further amendment was necessary and appropriate. The court had to balance the plaintiff's right to amend the pleadings against the need for finality in litigation and the potential prejudice to the defendant.

After careful consideration, the court determined that the plaintiff had not sufficiently demonstrated that the proposed further amendment was necessary or appropriate. The court found that the plaintiff had not provided adequate justification for the additional particulars sought, nor had they adequately addressed the directions previously issued. Consequently, the court declined the plaintiff's application for leave to further amend the statement of claim, emphasizing the importance of adhering to court directions and the need for particularity in pleadings. The court's decision was based on the principle that while parties should be given the opportunity to amend their pleadings, such amendments must be justified and not unduly prejudicial to the opposing party.

Orders