Scald Pty Ltd v Turner Developments Pty Ltd (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Scald Pty Ltd v Turner Developments Pty Ltd & Ors (No 2)

Citation:

ACTSC 264 [2014]

Hearing Date(s):

Hearing by written submissions completed 21 July 2014

DecisionDate:

17 October 2014

Before:

Harper M

Decision:

1. The plaintiff’s costs of the counterclaim be paid by the defendants, not including the sixth defendant.

2. The application by the plaintiff for leave to amend the statement of claim be dismissed.

3. The costs of the defendants (other than the sixth defendant) of the plaintiff’s application for leave to amend the statement of claim be paid by the plaintiff.

4. The proceeding be referred to the Registrar for allocation to the docket of a judicial officer for further directions.

Category:

Interlocutory Decision

Catchwords:

COSTS – counterclaim heard and determined separately from and prior to claim by plaintiff – counterclaim unsuccessful – whether costs should follow event – whether costs order should be made immediately or await outcome of claim by plaintiff – retirement of judicial officer hearing and determining counterclaim – order that plaintiff’s costs of counterclaim be paid by defendants.

AMENDMENT – application by plaintiff for leave to amend statement of claim under r 501 – r 501 applicable where amendment necessary for the purpose of deciding real issues in proceeding – court not satisfied that proposed amendment necessary for that purpose – application for leave to amend refused with costs.

Legislation Cited:

Supreme Court Act 1933
Court Procedures Rules 2006, r 501

Cases Cited:

Wilson v Francis [2007] WASC 141

Parties:

Scald Pty Ltd (Plaintiff)

Turner Developments Pty Ltd (First Defendant)

Canberra Contractors Pty Limited (Second Defendant)

Rovera Constructions Pty Ltd (Third Defendant)

Desi Nominees Pty Limited (Fourth Defendant)

Agi De Simone (Fifth Defendant)

Mart Pty Limited (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 P Ash (Plaintiff)

Mr R J Arthur (Defendants)

Solicitors

Mr J Weller by his agents Powrie & Co (Plaintiff)

Bradley Allen Love Lawyers (Defendants)

File Number(s):

SC 823 of 2009

Harper M:

1. On 30 April 2014 I ordered that the counterclaim in these proceedings, brought by the participating defendants in the action against the plaintiff, be dismissed, for reasons which I published.  I stood the action over for submissions as to the directions to be made for the further hearing of the action.

1. The action arises out of a dispute between companies and persons involved in a joint venture for the development of 74 residential units at Turner.  The first defendant company, Turner Developments Pty Limited, was incorporated to serve as the vehicle for the joint venture.  The plaintiff and the other defendants, were lenders to the first defendant for the purposes of the joint venture.  Most of them were also participants in the joint venture.  The driving force behind the project was Mr Michael De Simone, who controlled the second defendant, Canberra Contractors Pty Limited.

1. The participants in the…