Shmee Pty Ltd & Anor v Bresam Investments Pty Ltd & Ors Summary

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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CaseChat Overview and Summary

Shmee Pty Ltd and an associated company brought an action against Bresam Investments Pty Ltd and another party, seeking relief related to alleged breaches of fiduciary duties. The dispute was heard by the Supreme Court of New South Wales. The plaintiffs sought to amend their Statement of Claim and Particulars to include additional claims, which the defendants opposed on the basis that the amendments were not permissible under the relevant procedural rules.

The primary legal issue before the court was whether the plaintiffs were entitled to amend their Statement of Claim and Particulars to introduce new claims, particularly in light of the defendants' contention that the amendments were not permitted by the rules of court. The court had to balance the need for justice and fairness in the proceedings against the procedural constraints imposed by the court's rules.

The court held that the plaintiffs were not entitled to amend their Statement of Claim and Particulars to include the new claims. The court found that the amendments sought by the plaintiffs were not permitted under the rules of court because they did not fall within the exceptions for amendments that could be made without leave. The court emphasised the importance of adhering to procedural rules and noted that such amendments could potentially prejudice the defendants by introducing new claims at a late stage in the proceedings. Consequently, the court dismissed the plaintiffs' application to amend.

The court's decision was final, and no further amendments to the Statement of Claim and Particulars were allowed. The plaintiffs were required to proceed with the claims as originally stated.

Shmee Pty Ltd & Anor v Bresam Investments Pty Ltd & Ors

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established