Signorelli v Mg South Pty Ltd - [2012] NSWSC 1418

Supreme Court

New South Wales

Medium Neutral Citation: Signorelli v. MG South Pty Ltd [2012] NSWSC 1418
Hearing dates: 12/10/2012
Decision date: 12 October 2012
Jurisdiction: Common Law
Before: SG Campbell J
Decision:
(1) The first defendant have leave to amend its defence in accordance with the amended defence filed on 24 August 2012 nunc pro tunc;
(2) The first defendant pay the plaintiff's costs of this application on the ordinary basis;
(3) The plaintiff to have liberty to apply in respect of costs already incurred wasted by the late application for amendment;
(4) I stand the proceedings over for directions before the Registrar on 19 October 2012 for the parties to inform the Court whether the hearing dates can be maintained.

Catchwords: PROCEDURE - application to amend defence - whether point raised is sufficiently arguable to justify the grant of leave
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Fair Trading Act 1987 (NSW)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Cement Australia Pty Ltd and Ors v Australian Competition and Consumer Commission (2010) 187
Kayteal Pty Ltd v Dignan [2011] NSWSC 197
Mitchell Morgan Nominees Pty Ltd and Anor v Vella and Ors [2011] NSWCA 390
Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liq) [2011] NSWCA 367
Category: Interlocutory applications
Parties: Paul John Signorelli (plaintiff)
MG South Pty Ltd (first defendant)
P.E. Baltins & A.L. Mattiussi & L.Polito & R.Tosolini (second defendants)
Representation: Counsel:
J L Sharpe (plaintiff)
D McLure (first defendant)
N Treloar (solicitor) (second defendant)
Solicitors:
Costa & Associates (plaintiff)
Lander & Rogers (first defendant)
Middletons (second defendants)

File Number(s): 2010/373492

EX TEMPORE Judgment

His Honour: By statement of claim filed on 10 November 2010, the plaintiff sues the defendants for damages for professional negligence. The claim relates to losses suffered by the plaintiff on the sale of residential property at Blakehurst, New South Wales, which fell through. The property has been subsequently re-sold at a loss.

The first defendant is the plaintiff's estate agent acting in relation to the sale, and the second defendant is the legal practice acting on the conveyance.

The first defendant applies to amend the defence it filed on 27 July 2011. The amended defence is annexure A to the affidavit of Rebecca Jaye Mulae sworn on 10 September 2012. The defence bears a court seal, having been filed without the required leave on 24 August 2012.

In substance, the amendment proposed raises the application of Part 4 of the Civil Liability Act 2002 (NSW) relating to proportionate liability. In summary, the allegation of the existence of an apportionable claim under Part 4 is an argument that the relevant losses were caused by a breach of the former s 42 Fair Trading Act1987 (NSW) by the purchaser of the property and his agent.

The management of this case is very well advanced indeed. A mediation was convened late last year, affidavit evidence has long since been…

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.

Keep reading for free

Create a free CaseChat account to read Signorelli v Mg South Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWSC 1418
Decision Date: 12 October 2012

CaseChat Overview and Summary

The proceedings in the Federal Circuit Court involved a claim brought by Signorelli against Mg South Pty Ltd. Signorelli alleged breaches of contract and misleading and deceptive conduct arising from a sale of property. Mg South Pty Ltd sought to amend its defence after the expiration of the period for filing a defence, arguing that the proposed amendments related to points that were sufficiently arguable to warrant the grant of leave. The court had to determine whether the proposed amendments were relevant and whether the points raised were sufficiently arguable.

The court considered the principles governing the amendment of pleadings post-deadline and the criteria for determining whether a point is sufficiently arguable. The court assessed whether the proposed amendments introduced new defences that were relevant to the issues in the proceeding and whether those defences were arguable on the facts and law. The court also examined whether the delay in filing the amendment had prejudiced Signorelli.

The court held that the proposed amendments introduced new defences that were relevant to the proceeding and that the points raised were sufficiently arguable. The court found that while there was some delay in filing the amendment, this did not result in prejudice to Signorelli. Consequently, the court granted leave for the defence to be amended.

Orders