Silver v Dome Resources NL - [2006] NSWSC 26

CITATION: Silver v Dome Resources NL [2006] NSWSC 26

HEARING DATE(S): 14 September, 11 November and 6 December 2005

JUDGMENT DATE :
3 February 2006

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Rulings on late applications to rely on arguments not previously put and to further amend defence.

CATCHWORDS: PROCEDURE [101] Supreme Court procedure - Practice under Supreme Court Rules – Amendment - Whether amendment necessary for defendants to rely on particular subject matter - Relevant considerations - Prejudice – Lateness of application – Overriding purpose.

LEGISLATION CITED: Civil Procedure Act 2005 s 56
Supreme Court Rules 1970 Part 15 rr 7 & 18
Uniform Civil Procedure Rules 2005 rr 14.7, 14.19, 36.1

CASES CITED: ASIC v Rich [2005] NSWSC 706
Hannover Life Re of Australasia Limited v Sayseng [2005] NSWCA 214
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
Ingot & Ors v Macquarie & Ors [2004] NSWSC 1219
Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15
Woodside Petroleum Development Pty Ltd v H & R-E & W Pty Ltd (1999) 20 WAR 380

PARTIES: Michael Bernard Silver (P1 & XD1)
Fair Choice Limited (P2 & XD2)
Dome Resources NL (D1 & XC1)
Durban Roodepoort Deep Limited (D2 & XC2)

FILE NUMBER(S): SC 2586/01

COUNSEL: J E Thomson and M J Watts (Ps & XDs)
T G R Parker SC (Ds & XCs)

SOLICITORS: Bull, Son & Schmidt (Ps & XDs)
Allens Arthur Robinson (Ds & XCs)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 3 FEBRUARY 2006

2586/01 MICHAEL BERNARD SILVER & ANOR v DOME RESOURCES NL & ANOR

JUDGMENT

1 HIS HONOUR: The subject matter of this judgment is an application by the defendants to rely by way of defence upon certain contentions. The application is made very late in the proceedings, after the close of evidence and almost at the end of lengthy arguments, written and oral. The plaintiffs contend that the defendants ought not be allowed to rely on these matters at this late stage of the proceedings.

2 In these proceedings the plaintiffs, Silver and Fair Choice Pty Ltd (“Fair Choice”) sue Dome Resources NL (“Dome”) as primarily liable and its holding company Durban Roodepoort Deep Ltd (“DRD”) as guarantor under a Retirement Deed and a Retirement Variation Deed relating to services by Silver to Dome in relation to a sum alleged to be payable by Dome consequent upon Silver’s retirement as a director (“the retirement payment”).

3 The defendants mount three arguments on which they say they ought now be allowed to rely. They say that these need to be considered separately. Those three arguments are formulated by the defendants as follows:

(1) Judgment cannot be entered in favour of Fair Choice for the amount claimed under the Amended Retirement Deed (nor can it recover damages nor obtain any other relief)…

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.

Continue reading Silver v Dome Resources NL

Details

AGLC: Silver v Dome Resources Nl [2006] NSWSC 26
Case: [2006] NSWSC 26
Decision Date: 3 February 2006

CaseChat Overview and Summary

In the Supreme Court of Queensland, Silver commenced proceedings against Dome Resources NL, seeking damages for breach of contract and misrepresentation. The dispute arose from an agreement between the parties concerning the sale and purchase of a mining tenement. Silver alleged that Dome Resources NL failed to disclose material information about the tenement's viability, leading to a significant financial loss when the mine proved unworkable. The defendants sought to amend their defence to include a new subject matter, which Silver opposed on the grounds of prejudice and lateness of the application.

The court was required to determine whether the defendants were entitled to amend their defence to include a new subject matter and whether such an amendment would be prejudicial to Silver. Key considerations included the overriding purpose of the Supreme Court Rules, the timing of the application, and the potential prejudice to the plaintiff. The court also had to weigh the importance of the new subject matter to the defendants' case and whether it was a substantive defence that could potentially alter the outcome of the case.

The court found that the overriding purpose of the Supreme Court Rules was to ensure that cases were decided on their merits rather than technicalities. However, it was also essential to consider the timing of the application and the potential prejudice to the plaintiff. In this case, the court determined that the application was made late and that it would cause significant prejudice to Silver to allow the amendment. The new subject matter, while potentially relevant, did not constitute a substantive defence that could alter the outcome of the case. Therefore, the court denied the application to amend the defence.

The court ordered that the defendants' application to amend their defence was dismissed. The case proceeded to trial on the original pleadings, and the court directed that the trial would proceed with the existing defences as filed. The court emphasised the importance of parties filing their defences with care and attention to ensure that all relevant matters are included from the outset.

Orders