Scald Pty Ltd v Turner Developments Pty Ltd

[2016] ACTSC 279

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Scald Pty Ltd v Turner Developments Pty Ltd

Citation:

[2016] ACTSC 279

Hearing Date:

18 February 2016

DecisionDate:

23 September 2016

Before:

Burns J

Decision:

See [26]

Catchwords:

PRACTICE AND PROCEDURE – pleadings – leave to amend defence – amendment not a defence to plaintiff’s claim – significant delay in seeking amendments – presumptive and possible actual prejudice – defendants’ defence doomed to fail – application to amend refused.

Legislation Cited:

Court Procedure Rules 2006 (ACT) rr 501, 502, 2721

Cases Cited:

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589

Scald Pty Ltd v Turner Developments Pty Ltd & Ors [2014] ACTSC 72

Scald Pty Ltd v Turner Developments Pty Ltd & Ors [2015] ACTSC 270

Parties:

Scald Pty Ltd (Plaintiff)

Turner Developments Pty Ltd (First Defendant)

Canberra Contractors Pty Ltd (Second Defendant)

Rovera Constructions Pty Ltd (Third Defendant)

Desi Nominees Pty Ltd (Fourth Defendant)

Agi De Simone (Fifth Defendant)

Mart Pty Ltd (Sixth Defendant)

Space Developments Pty Ltd (Seventh Defendant)

Multifield Civil Engineering Pty Ltd (Eighth Defendant)

David John Dal Molin (Ninth Defendant)

Representation:

Counsel

Mr D Ash (Plaintiff)

Mr R Arthur (First, Second, Third, Fourth, Fifth, Seventh, Eighth and Ninth Defendants)

Solicitors

Joe Weller & Associates (Plaintiff)

Bradley Allen Love Lawyers (First, Second, Third, Fourth, Fifth, Seventh, Eighth and Ninth Defendants)

File Number:

SC 823 of 2009

BURNS J:

1. The background to these proceedings is to be found in Scald Pty Ltd v Turner Developments Pty Ltd & Ors [2015] ACTSC 270. In that judgment I found that there was a preliminary question to be decided before any order for the taking of accounts could be made pursuant to r 2721 of the Court Procedure Rules 2006 (ACT) (the CPR). These proceedings concern the rights of the parties to a share in a sum of approximately $3.2 million currently held in the trust account of the firm of Meyer Vandenberg, a firm of solicitors.

1. The essential question raised is whether the taking of accounts should be conducted on the basis that the rights of the parties to distribution of funds currently held in the solicitors trust account, being funds from the sale of a property which was the subject of the 2006 Agreement and mortgage (as defined in my earlier decision), are set out comprehensively in the 2006 Agreement; the loans referred to in the 2006 Agreement were secured by the 2006 mortgage. This is the proposition adopted by the plaintiff. The defendants (except for the sixth defendant which has taken no part in the proceedings) submit that any accounting must take into account amounts that they paid to the first defendant prior to the 2006 Agreement and which were the subject of an earlier mortgage in 2004 (the 2004 mortgage). The 2004 mortgage was discharged without the sums secured by the mortgage being repaid.

1. In December 2009, the defendants filed a Defence and Counterclaim seeking rectification of the 2006…