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Silver v Dome Resources NL

Silver v Dome Resources NL

Case [2005] NSWSC 265 10 March 2005

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CITATION:
Silver v Dome Resources NL [2005] NSWSC 265

HEARING DATE(S): 3 and 10 March 2005

JUDGMENT DATE :

10 March 2005

JURISDICTION:
Equity

JUDGMENT OF:
Hamilton J

DECISION:
Leave to withdraw admission in defence refused

CATCHWORDS:
PROCEDURE [99] - Supreme Court procedure - Practice under Supreme Court Rules - Admissions - Withdrawal - Absence of absolute right to withdraw - Discretionary considerations.

LEGISLATION CITED:
Trade Practices Act 1974 (Cth) s 52
Corporations Act 2001 (Cth) ss 200B and 200G

CASES CITED:
Celestino v Celestino FCAFC unreported 16 August 1990
Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738
Demasi v Linfox Transport (Aust) Pty Ltd NSWSC unreported 14 June 1995, McLelland CJ in Eq
Drabsch v Switzerland General Insurance Co Ltd NSWSC unreported 16 October 1996, Santow J
Hutton v Meston [2004] WASCA 178
Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327
McKenzie v Commonwealth [2001] VSC 361
The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146

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

FILE NUMBER(S):
SC 2586/01

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

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

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 10 MARCH 2005

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

JUDGMENT

1 HIS HONOUR: These are applications to amend further the statement of claim and the defence. The questions that have been contested on the hearing of the application are whether the defendants may further amend their defence to withdraw an admission and as to whether the plaintiffs may further amend their statement of claim to include claims under s 52 of the Trade Practices Act 1974 (Cth) in respect of two representations additional to the two representations already relied on.

2 In their original statement of claim, filed on 11 May 2001, the plaintiffs allege in par 20:

“If the First Defendant made a payment to the Second Plaintiff pursuant to the terms of the Amended Retirement Deed, the First Plaintiff, who was at all relevant times a beneficially entitled shareholder of the Second Plaintiff, would have received a substantial benefit.”

3 There is a long history in…

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 [2005] NSWSC 265
Case: [2005] NSWSC 265
Decision Date: 10 March 2005

CaseChat Overview and Summary

The Supreme Court of New South Wales was presented with an application by Dome Resources NL seeking to withdraw an admission made during litigation proceedings against Silver. The dispute revolved around the admissibility of evidence and procedural matters concerning the withdrawal of admissions. The Court was tasked with determining whether Dome Resources NL had an absolute right to withdraw an admission, and if not, what factors would be considered in exercising the Court's discretion to allow or deny such a withdrawal.

The primary legal issue before the Court was whether there exists an absolute right for a party to withdraw an admission in civil litigation under the Supreme Court Rules. The Court examined the relevant rules and case law to determine the scope of the discretion available to it in such circumstances. It considered the principles of fairness and justice, the stage of the proceedings, and the impact of the withdrawal on the opposing party. The Court also evaluated whether the withdrawal of the admission would cause any undue prejudice or unfairness to the other party.

In its decision, the Court held that there is no absolute right for a party to withdraw an admission. Instead, the Court must exercise its discretion based on a consideration of relevant factors. The Court found that the discretion should be exercised judiciously, taking into account the timing of the application, the reasons for the withdrawal, and the potential prejudice to the opposing party. The Court concluded that in this case, the application to withdraw the admission should be denied due to the late timing of the application and the significant prejudice it would cause to Silver. The Court's decision underscored the importance of procedural fairness and the need for parties to carefully consider the implications of making admissions in litigation.

The Court further ordered that Dome Resources NL was not permitted to withdraw the admission and that the admission would stand as part of the evidence in the case. This decision reinforces the principle that parties should be mindful of the consequences of their admissions and the importance of adhering to procedural requirements in litigation.

Orders