Sam Management Services (Aust) Pty Ltd v Bank of Western Australia Ltd

[2009] NSWSC 702

CITATION:	Sam Management Services (Aust) Pty Ltd v Bank of Western Australia Ltd [2009] NSWSC 702
HEARING DATE(S):	17 July 2009
JURISDICTION:	Equity Division Expedition List
JUDGMENT OF:	Rein J
EX TEMPORE JUDGMENT DATE:	17 July 2009
DECISION:	Application for leave to reopen is refused.
CATCHWORDS:	PROCEDURE – application for leave to reopen – general principles – whether or not the material sought to be adduced is of probative value and is relevant to the issues in the proceedings
CATEGORY:	Procedural and other rulings
CASES CITED:	Australian Securities and Investments Commission v Rich [2006] NSWSC 826 The Movie Network Channel Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 Urban Transit of Authority of NSW v Nweiser (1992) 28 NSWLR 471
PARTIES:	Sam Management Services (Aust) Pty Ltd (Plaintiff) Bank of Western Australia Ltd (Defendant)
FILE NUMBER(S):	SC 1686/09
COUNSEL:	B Rayment QC, S Balafoutis (Plaintiff) C Withers (Defendant)
SOLICITORS:	Lenehan & Co (Plaintiff) Blake Dawson (Defendant)

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

Rein J

17 July 2009

1686/09 Sam Management Services (Aust) Pty Ltd v Bank of Western Australia Ltd

JUDGMENT (EX TEMPORE)

1 REIN J: This matter was listed for judgment today at 2:00pm. It had been listed for 10:00am, but my associate telephoned the parties yesterday to advise it would be deferred to 2:00pm. The plaintiff now seeks to re-open the matter in order to read an affidavit of Mr Norman Rutherford Lenehan of 17 July 2009. Mr Lenehan is the plaintiff's solicitor.

2 The application to re-open is opposed. Mr Rayment QC appears with Mr Balafoutis of counsel for the plaintiff on this application and Mr Withers of counsel (who appeared as junior counsel at the hearing) appears for the defendant. Mr Lenehan's affidavit annexes a letter of offer from Ingwersen & Lansdown, which letter of offer is dated 16 July 2009. The affidavit of Mr Lenehan and notice of this application was given to the defendant at 12:30pm today, and at about the same time my associate received a faxed copy of the affidavit and its annexure and a letter indicating that it would be the plaintiff's application today to re-open the matter.

3 The letter, which is addressed to, "The Directors, Sam Management Services Australia Pty Ltd, care of John Poulos", contains a conditional approval of a loan application for an amount of $6,081,000. The document refers to securities that would be required by the lender (see section 13); those securities mentioned include two securities presently held by the defendant, one of Basset Lane and one at Claremont. In the letter those securities are said to be valued at $4.4 million and $4.3 million, for Bassett Lane and Claremont Meadows, respectively.

4 Mr Rayment made it quite clear that the purpose of the tender is to indicate to the Court that there is some utility in the declaration which has been sought by the plaintiff. He said that his client wanted to proceed with the offer. Mr Withers responded by arguing that the defendant had indicated its position as long ago as April 2008, that there had been a hearing dealing with the applications for refinance, or lack of them in May and August 2008, and that it is, as he put it, “too little too late”. He also queried the relevance or the pertinence of this material.

5 No affidavit has been provided from Mr Poulos in relation to this offer or letter nor any from Mr Marzouk. The letter of offer has not been communicated to the defendant until, as I noted, 12:30pm today, and there has been no application made to the defendant by the plaintiff for or on behalf of the plaintiff indicating that the plaintiff wishes to proceed to accept the offer. No loan application to which this is said to be a response has been put in evidence. The letter of offer has this curious aspect about it: it states that any questions in respect of the letter of offer are to be directed to Mr Poulos which is rather surprising as Mr Poulos is the person to whom the letter has been sent, and there is evidence in the substantive proceedings that he is a finance broker who acts for the plaintiff. The letter indicates that the offer contained in the letter is open for acceptance for three days from the date of the letter. These are matters which I think make the material of very limited weight.

6 The general principles relevant to whether leave should be given to a party to re-open its case was considered in Urban Transit of Authority of NSW v Nweiser (1992) 28 NSWLR 471 at p 478D-F per Clarke JA, with whom Mahoney and Meagher JJA concurred. The guiding principle was discussed by Clarke JA and is whether the interests of justice are better served by allowing or rejecting the application, as the case may be. The issue was considered further in Australian Securities and Investments Commission v Rich [2006] NSWSC 826 at 18 where Austin J helpfully listed the factors relevant to the exercise of discretion to be considered:

"(i) the nature of the proceeding;
(ii) whether the occasion for calling the further evidence ought reasonably to have been foreseen;
(iii) the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;
(iv) the extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief;
(v) the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;
(vi) the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;
(vii) the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;
(viii) the public interest in the timely conclusion of litigation;
(ix) what explanation is offered by the plaintiff for not having called the evidence in chief.”

7 This approach was implicitly approved by Einstein J in The Movie Network Channel Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 at [8].

8 This is not a case in which the particular evidence was available previously because the offer was only made yesterday, but the lateness of the evidence is relevant because no evidence has been offered as to when the application was made and why it was not made a long time ago and the whole area of the issue of applications for partial refinancing or lack thereof was very much a part of the plaintiff's case at the hearing before me. The case was an expedited matter, on the application of both parties, and involves a commercial relationship between a customer and a bank. There is a public interest in ensuring litigation concludes within the allotted time and that is amplified here by reason of the commercial nature and the grant of expedition. However, I do take into account that the application is of a limited nature in terms of the material that is sought to be put before the Court. There is no prejudice to the defendant in terms of delay, but there is potential prejudice in the way in the lateness with which this has been obtained and served upon the defendant, and hence the limited time within which it has had to consider the application, and the manner in which the evidence is sought to be lead.

9 There are two matters that I think are particularly significant here and they are the degree of relevance and probative value of the further material which is sought to be adduced and the importance of this issue in the proceedings. I have referred earlier to some aspects of the material that bring into question its probative value, but the new material, if probative, cannot be relevant as to whether or not the defendant has acted unreasonably in the past. It only goes, as Mr Rayment conceded, to the questions of whether there is any utility in making a declaration sought by SMS.

10 On the view I take of the case, which I will in a moment indicate when I publish my reasons, the existence of any offer now, even if genuine and acceptable to the plaintiff, would not affect the result. I refuse leave to the plaintiff to re-open its case.