Sagacious Procurement Ltd v Mayne Group Ltd - [2005] NSWSC 1238

CITATION:
Sagacious Procurement Ltd v Mayne Group Ltd [2005] NSWSC 1238

HEARING DATE(S): 25/11/05

JUDGMENT DATE :

28 November 2005

JURISDICTION:
Equity Division
Commercial List

JUDGMENT OF:
White J

DECISION:
See paragraph 44 of judgment.

CATCHWORDS:
PRACTICE AND PROCEDURE – Application to amend pleadings – Date from which amendment is to take effect – Whether defendant deprived of a limitations defence – Whether amendment arises from some facts or it is otherwise just to grant leave under s 64 of the Civil Procedure Act.

LEGISLATION CITED:
Trade Practices Act 1974 (Cth)
Civil Procedure Act 2005 (NSW)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedures Rules 2005 (NSW)

CASES CITED:
Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1
Rodgers v Commissioner of Taxation (1998) 88 FCR 61
Brickfield Properties Ltd v Newton (1971) 3 All ER 328
McGee v Yeomans (1977) 1 NSWLR 273
New Cap Reinsurance Corp v Reaseguros Alianza SA (2004) 186 FLR 175
Ingot Capital Investments Pty Ltd v Macquarie Equity Market Limited (No.3) [2005] NSWSC 255

PARTIES:
Sagacious Procurement Ltd v Mayne Group Ltd

FILE NUMBER(S):
SC 50158/02

COUNSEL:
Plaintiff: M Elliot
Defendant: D Pritchard

SOLICITORS:
Plaintiff: Sagacious Legal Pty Ltd
Defendant: Freehills

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

WHITE J

Monday, 28 November 2005

50158/02 Sagacious Procurement Ltd v Mayne Group Ltd

JUDGMENT

1 HIS HONOUR: This matter was before me late in the afternoon of Friday, 25 November 2005 for the purpose of deciding what orders should be made, principally in relation to the terms upon which the plaintiff should be given leave to file an Amended Summons.

2 The defendant did not oppose the plaintiff having leave to file an Amended Summons. But it contended that an order should be made that the amendments should have effect from the date upon which the Amended Summons was filed.

3 Alternatively, it was submitted that the question as to the date from which the amendments were to take effect should be referred to the trial judge.

4 The Summons was filed on 20 September 2002. In it, the plaintiff claims damages for breach of contract, and for misrepresentations allegedly made between November 1999 and 24 January 2000. It alleges that these misrepresentations induced it to enter into a Heads of Agreement with the defendant on 24 January 2000, and consequently to execute a contract called a "Strategic Alliance Agreement" on 2 July 2000 with the defendant.

5 In its Amended Summons, the plaintiff pleads different representations. It alleges these were made to it in November and December 1999. These representations are alleged to be misleading and deceptive, or likely to mislead and deceive, and to have been made in trade or commerce.

6 The plaintiff alleges that in reliance upon the representations, it entered into the Heads of Agreement on 24 January 2000, and later into the Strategic Alliance Agreement.

7 It claims it suffered damage in that had it not been…

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 Sagacious Procurement Ltd v Mayne Group Ltd

Details

AGLC: Sagacious Procurement Ltd v Mayne Group Ltd [2005] NSWSC 1238
Case: [2005] NSWSC 1238
Decision Date: 28 November 2005

CaseChat Overview and Summary

Sagacious Procurement Ltd brought an action against Mayne Group Ltd, seeking damages for alleged breaches of contract and associated torts. The case was heard in the Supreme Court of Victoria. The primary dispute centred on whether the plaintiff's application to amend its pleadings, particularly in relation to the date from which the amendment was to take effect, would deprive the defendant of its limitations defence. The defendant argued that such an amendment would unfairly prejudice its ability to defend the case on statute of limitations grounds.

The court needed to determine whether the amendment to the pleadings arose from facts that were known or could reasonably be known at the time the originating application was filed, or if it was otherwise just to grant leave under section 64 of the Civil Procedure Act. The court also had to assess whether the amendment would deprive the defendant of its limitations defence and if the defendant would suffer significant prejudice as a result.

In assessing the application, the court considered the criteria outlined in section 64 of the Civil Procedure Act, focusing on whether the amendment arose from facts that were known or could reasonably be known at the time the originating application was filed. The court found that the amendment did not arise from such facts and that it was not just to grant leave. The court held that allowing the amendment would deprive the defendant of its limitations defence and result in significant prejudice. Consequently, the court refused the application to amend the pleadings.

The court's final order was that the plaintiff's application to amend the pleadings was dismissed, and the plaintiff was ordered to pay the defendant's costs of the application.

Orders