Shmee Pty Ltd & Anor v Bresam Investments Pty Ltd & Ors
[2008] VSC 627
•19 June 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL LIST
F.5839 No. 2060 of 2005
| SHMEE PTY LTD (ACN 102 989 837) AND | Firstnamed Plaintiff |
| INC CORPORATION PTY LTD (ACN 005 302 250) | Secondnamed Plaintiff |
| v | |
| BRESAM INVESTMENTS PTY LTD (ACN 059 539 276) AND OTHERS (according to the schedule) | Firstnamed Defendant |
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JUDGE: | VICKERY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 JUNE 2008 | |
DATE OF RULING: | 19 JUNE 2008 | |
CASE MAY BE CITED AS: | SHMEE PTY LTD v BRESAM INVESTMENTS PTY LTD | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 627 | |
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PRACTICE AND PROCEDURE – Amendment to Statement of Claim and Particulars.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Dr J. Bleechmore | J.A. Fillmore & Co |
| For the Defendants | Mr M. Osborne | Madgwicks Lawyers |
HIS HONOUR:
Yes, I will grant the amendment in the form discussed subject to particulars being provided in respect of paragraph 18(c) of the amended statement of claim. My view is that although the figure of 58 per cent of sales being the cost of materials was indeed the subject of witness statements and cross-examination and indeed referred to in paragraph 5J(iii) of the further and better particulars provided, the particular status of that matter, being the representation that the cost of materials would be 58 per cent of sales, has not been hitherto directly pleaded as a specific representation.
In those circumstances it may well be that Mr Osborne would have or could have or indeed should have pursued the issue with more vigour than otherwise and to avoid that prejudice I will permit him to recall the witnesses that he has referred to, being Mr Coates, Mr Simmonds and Mr Blashki. I will also award costs to the defendants occasioned by the amendment including the costs of this morning.
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