Singtel Optus v Almad - [2013] NSWSC 1098

Supreme Court

New South Wales

Medium Neutral Citation: Singtel Optus v Almad [2013] NSWSC 1098
Hearing dates: 05/08/2013
Decision date: 05 August 2013
Jurisdiction: Equity Division - Commercial List
Before: McDougall J
Decision:
Grant leave to withdraw admission.

Catchwords: PRACTICE AND PROCEDURE - pleadings - application to amend - withdrawal of admission
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Drabsch v Switzerland General Insurance Co Limited (unreported, Supreme Court of NSW, Santow J, 16 October 1996)
Maile v Rafiq [2005] NSWCA 410
Category: Procedural and other rulings
Parties: Singtel Optus Pty Ltd (First Plaintiff)
Optus Networks Pty Ltd (Second Plaintiff)
Optus Administration Pty Ltd (Third Plaintiff)
Almad Pty Ltd (First Defendant)
Sumo Distribution and Storage Pty Ltd (Second Defendant)
Leon Mark Curtis (Third Defendant)
Craig Hasler (Fourth Defendant)
PJC333 Pty Limited (Fifth Defendant)
Representation: Counsel:
J Stoljar SC / DJA Mackay (Plaintiffs)
BW Rayment QC / J T Johnson / IJ King (First, Third, Fourth and Fifth Defendants)
Second Defendant (Unrepresented)
Solicitors:
Minter Ellison (Plaintiffs)
MCW Lawyers (First, Third, Fourth and Fifth Defendants)
Second Defendant (Unrepresented)

File Number(s): 2011/139541

Judgment (EX TEMPORE - REVISED 5 august 2013)

HIS HONOUR: I am concerned with an application (made in the course of a final hearing) by the first defendant to amend a paragraph of its response to the Further Amended Commercial List Statement (FACLS) by withdrawing an admission.

The background to the application is that the first defendant, Almad, provided services to one or other of the plaintiffs, to whom it is sufficient to refer as "Optus".

Paragraph 14 of the FACLS alleges that during the relevant period, "Almad provided transport and logistics management services, including storage, scrapping and labour to" Optus. That is said to have been done pursuant to something known as the "Almad Arrangements".

Paragraph 15 alleges that pursuant to those arrangements, Almad would collect and transport, or procure the collection and transportation of, equipment and stock owned by one or other of the Optus companies. It alleges, further, that Almad would arrange storage for that equipment and stock. It makes other allegations which need not be examined.

It is tolerably clear, both from the evidence and from the pleadings as a whole, that Optus regarded Almad as some sort of broker for the purpose of arranging transportation and warehousing services. So much was acknowledged by Mr Natale of Optus in his evidence this morning. That is also alleged by Optus against Almad in para 28A of the FACLS.

Paragraph 17 of the FACLS alleges that from time to time Almad and Optus entered into contracts "for the provision of the transport and logistics management services by Almad to" Optus. The particulars to that paragraph make it clear that what Optus is alleging is not one overarching or master contract, performed on numerous occasions by requests for and provision of services. Rather, it is the case that is pleaded and particularised that each time such a request was made and performed, and an invoice generated, there was…

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 Singtel Optus v Almad

Details

AGLC: Singtel Optus v Almad [2013] NSWSC 1098
Case: [2013] NSWSC 1098
Decision Date: 05 August 2013

CaseChat Overview and Summary

The case of Singtel Optus v Almad was heard in the Federal Court of Australia. The dispute between the parties centred around a claim for damages for breach of contract and unjust enrichment. The plaintiff, Singtel Optus, sought to amend their statement of claim to include a new cause of action for unjust enrichment, after the defendant, Almad, had already admitted to certain facts in their defence. The defendant opposed the application to amend on the basis that it would cause unfairness and prejudice to their case, given the time that had passed since the original pleadings were filed and the fact that they had already made admissions based on the original statement of claim.
The court was required to determine whether the plaintiff's application to amend their statement of claim should be granted, and whether such an amendment would cause unfairness or prejudice to the defendant. The court considered the principles governing amendments to pleadings, including the need for flexibility in the conduct of litigation and the importance of ensuring that a case is decided on its merits. The court also considered the effect of the defendant's admissions on the proposed amendment, and whether those admissions would be impacted by the amendment.
The court found that the proposed amendment would not cause unfairness or prejudice to the defendant, and that the defendant's admissions would not be impacted by the amendment. The court noted that the defendant had not demonstrated any significant prejudice or disadvantage that would result from the amendment, and that the principle of flexibility in the conduct of litigation should be upheld. The court therefore granted the plaintiff's application to amend their statement of claim to include the new cause of action for unjust enrichment. The orders of the court are that the plaintiff's application to amend is granted, and that the defendant's opposition is dismissed.

Orders