Signorelli v Mg South Pty Ltd - [2012] NSWSC 1329

Supreme Court

New South Wales

Medium Neutral Citation: Signorelli v MG South Pty Ltd [2012] NSWSC 1329
Hearing dates: 29 October 2012
Decision date: 02 November 2012
Jurisdiction: Common Law
Before: Harrison J
Decision:
1. Grant leave to the second defendants to file an amended defence in the form proposed.
2. Order the second defendants to pay the costs of the plaintiff of and incidental to the second defendants' application for leave to amend the defence on an indemnity basis.
3. Order that the costs of the hearing for any day or days beyond the first two days scheduled for the trial that are caused or occasioned by the second defendants' amended defence are to be the plaintiff's costs in the proceedings on the ordinary basis.

Catchwords: PROCEDURE - defence - application for leave to amend - Civil Liability Act 2002 ss 34 and 35 - proportionate liability - whether apportionable claim - whether claim sufficiently arguable to justify grant of leave - delay in bringing application - leave granted - costs payable on indemnity basis
Legislation Cited: Civil Liability Act 2002
Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Mitchell Morgan Nominees v Vella [2011] NSWCA 390
Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187
Category: Procedural and other rulings
Parties: Paul John Signorelli (Plaintiff)
MG South Pty Ltd (First Defendant)
P E Baltins, A L Mattiussi, L Polito & R Tosolini (Second Defendants)
Representation: J L Sharpe (Plaintiff)
J S Emmett (Second defendant)
Costa & Associates (Plaintiff)
Lander & Rogers (First Defendant)
Middletons (Second Defendants)

File Number(s): 2010/373492

Judgment

HIS HONOUR: The second defendants move the Court by notice of motion filed 16 October 2012 for leave to amend their defence. The terms of the amendments are referred to later in these reasons. The plaintiff opposes the application. The first defendant does not do so. The application can only be properly understood with knowledge of the procedural history of the litigation so far.

Background

The plaintiff commenced these proceedings by statement of claim filed on 10 November 2010 seeking damages from his former real estate agent, the first defendant, and his former solicitors, the second defendants, for losses allegedly sustained by him as the result of the sale of his property at Blakehurst that fell through. John Nazloomian agreed to purchase the property for $1.88M on 25 July 2009 and was required by the terms of the contract to pay a deposit of ten percent of the purchase price, which he purported to do by provision of a deposit bond. It seems that the first defendant accepted a copy of the bond on exchange rather than the original. The second defendants acted for the plaintiff on the sale and are alleged to have advised the plaintiff that the exchange was valid notwithstanding this fact. Despite requests for the provision of the original deposit bond, Mr Nazloomian never provided it. The second defendants…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 1329
Decision Date: 02 November 2012

CaseChat Overview and Summary

In Signorelli v Mg South Pty Ltd, Signorelli, the plaintiff, sought damages from Mg South Pty Ltd, the defendant, following an accident that occurred on their property. Signorelli alleged that the defendant was negligent in failing to maintain a safe environment, resulting in her injuries. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the plaintiff's claim was sufficiently arguable to warrant the granting of leave to amend the defence. The court also had to consider whether the plaintiff's claim was apportionable under the Civil Liability Act 2002 and whether the delay in bringing the application would prejudice the defendant.

The court found that the plaintiff's claim was sufficiently arguable, given the evidence presented. It held that the defendant's failure to maintain a safe environment was a reasonable foreseeable harm, and thus, the claim was valid. Additionally, the court concluded that the claim was apportionable, meaning that the plaintiff's damages could be reduced in proportion to her contributory negligence. The court also acknowledged that the delay in bringing the application might prejudice the defendant but found that the benefits of allowing the amendment outweighed the potential prejudice. Consequently, the court granted the defendant's application for leave to amend the defence and ordered that costs be payable on an indemnity basis.

Orders