Soia v Bennett - [2011] WASC 59

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SOIA -v- BENNETT [2011] WASC 59

CORAM: CORBOY J

HEARD: 24 FEBRUARY 2011

DELIVERED : 1 MARCH 2011

PUBLISHED : 9 MARCH 2011

FILE NO/S: CIV 1130 of 2003

BETWEEN: KIM PETER SOIA
First Plaintiff
PERSONALIZED TUITION SERVICES PTY LTD
Second Plaintiff
AND
MARTIN LAWRENCE BENNETT
Defendant

Catchwords:

Practice and procedure - Application to amend defence - Whether new defence pleaded - Whether amendment causes prejudice or delay - Explanation for delay in making amendment - Turns on own facts

Legislation:

Fair Trading Act 1987 (WA), s 9
Rules of the Supreme Court 1971, O 21 r 3

Result:

Application to amend allowed

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr E W Alstergren
Second Plaintiff            :     Mr E W Alstergren
Defendant:     Dr J T Schoombee

Solicitors:

First Plaintiff                :     Galic & Co
Second Plaintiff            :     Galic & Co
Defendant:     Bennett & Co

Case(s) referred to in judgment(s):

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156

CORBOY J:

(This judgment was delivered orally on 1 March 2011 and has been edited from the transcript.)

Introduction

This is an application by the defendant (Mr Bennett) to amend his defence. The application was made by summons dated 14 February 2011.
The application is opposed on the following grounds:
(a)the application to amend was made in circumstances where:
(i)the plaintiffs' action was commenced in February 2003;
(ii)the defence has stood in its current form since June 2003;
(iii)in October 2010, Mr Bennett informed the court that he was ready for the matter to be listed for trial;
(iv)the action has been listed for trial for five days commencing 14 March 2011;
(v)the plaintiffs' preparation for trial is advanced and in particular, witness statements have been prepared, filed and served;
(b)there was no proper or adequate explanation for the delay in making the amendments ‑ that is, no explanation of why the matters now sought to be alleged were not pleaded in the defence filed in 2003 and as to the circumstances surrounding the making of the application;
(c)the amendments raise a new and different defence;
(d)the plaintiffs will be required to adduce further evidence to meet the allegations that are made in the proposed amendments.
Mr Bennett contends that the proposed amendments merely better identify the real issues to be determined at trial by reference to matters that have already been pleaded.
I have concluded that the proposed amendments ought to be allowed. In reaching that conclusion, I have taken into account the explanation provided by Mr Bennett's counsel as to the scope of the amendments. It is, in my view, important to record those matters in these reasons to avoid any uncertainty as to the issues to be determined at trial.

The case as presently pleaded

The summary of the plaintiffs' case that follows is drawn from the allegations contained in the…

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 Soia v Bennett

Details

AGLC: Soia v Bennett [2011] WASC 59
Case: [2011] WASC 59
Decision Date: 9 MARCH 2011

CaseChat Overview and Summary

The case of Soia v Bennett involved a dispute between the plaintiff, Soia, and the defendant, Bennett. The nature of the dispute was a legal action where the plaintiff sought to amend their defence in response to new evidence presented by the defendant. The case was heard in a lower court in Australia. The legal issues that the court needed to decide included whether the amendment to the defence constituted a new defence, whether such an amendment would cause prejudice or delay to the proceedings, and the adequacy of the explanation provided by the plaintiff for the delay in making the amendment.

The court considered the principles of procedure and the relevant rules governing amendments to pleadings. It examined the nature of the amendment proposed by the plaintiff and whether it introduced a new defence or merely refined an existing one. The court also assessed the potential impact of the amendment on the defendant, including any prejudice or delay it might cause. Additionally, the court evaluated the explanation provided by the plaintiff for the delay in making the amendment and whether it was reasonable and satisfactory. Based on these considerations, the court determined that the amendment did not introduce a new defence, and the explanation for the delay was adequate. Therefore, the court allowed the amendment to the defence.

The court's decision was that the amendment to the defence did not constitute a new defence and did not cause undue prejudice or delay. The plaintiff's explanation for the delay in making the amendment was deemed satisfactory. Consequently, the court granted the plaintiff's application to amend their defence. This decision allowed the case to proceed with the updated defence, ensuring that both parties had the opportunity to address all relevant issues in the litigation.

Orders