Soia v Bennett [No 2] - [2011] WASC 133

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SOIA -v- BENNETT [No 2] [2011] WASC 133

CORAM: COMMISSIONER SLEIGHT

HEARD: 4 MAY 2011

DELIVERED : 20 MAY 2011

PUBLISHED : 8 JULY 2011

FILE NO/S: CIV 1130 of 2003

BETWEEN: KIM PETER SOIA
First Plaintiff
PERSONALIZED TUITION SERVICES PTY LTD (ACN 009 099 718)
Second Plaintiff
AND
MARTIN LAWRENCE BENNETT
Defendant

Catchwords:

Practice and procedure - Application to amend statement of claim, particulars and reply - Whether amendments embarrassing - Lack of explanation for change in pleadings - Whether amendments should be allowed to enable a just resolution of the dispute - Turns on its own facts

Legislation:

Nil

Result:

Application granted

Category: B

Representation:

Counsel:

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

Solicitors:

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

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

ABB Service Pty Ltd v Hetherington [2001] WASCA 417
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281
Morgan v Banning (1999) 20 WAR 474
Papadoulis v Pappas & Associates (a firm) [2009] WADC 22
Soia v Bennett [2011] WASC 59

COMMISSIONER SLEIGHT: The trial in this matter is listed to commence on 20 May 2011 and thereafter is listed for three weeks. Proceedings in this matter were commenced by the plaintiffs on 10 February 2003.
The plaintiffs by chamber summons dated 4 May 2011, made applications for:
(a)Leave to amend the statement of claim in terms of a minute of proposed amended statement of claim dated 14 April 2011 (this was subsequently replaced with a minute dated 2 May 2011).
(b)Leave to amend the reply in terms of a minute of the proposed amended reply dated 14 April 2011.
(c)The defendant to provide further and better discovery on oath of documents which are listed in schedule 1 of the chamber summons.
The applications by the plaintiffs are opposed by the defendant.
The defendant made an application by chamber summons dated the 20 April 2011 seeking an order for parts of the plaintiffs' reply dated the 29 March 2011 be struck out.
The applications came before me on 4 May 2011. The plaintiffs' existing reply pleading, the proposed amended statement of claim and the proposed amended reply, contained particulars of alleged representations made by the defendant which were inconsistent with par 3 of the statement of claim and, by way of particulars, made a reference to paragraphs of the witness statements of the plaintiff, Mr Soia dated 18 February 2011 and 23 March 2011. The paragraphs of the witness statements pleaded by way of particulars contained material other than that relied upon for the pleadings. I concluded that the form of the pleadings was embarrassing. On this basis I struck out the reply…

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 [No 2]

Details

AGLC: Soia v Bennett [No 2] [2011] WASC 133
Case: [2011] WASC 133
Decision Date: 8 JULY 2011

CaseChat Overview and Summary

The proceedings arose from a dispute between the plaintiff, Soia, and the defendant, Bennett. Soia sought to amend his statement of claim, particulars, and reply, seeking to add new causes of action and alter the facts upon which he relied. The application was made after the close of pleadings, and Bennett opposed the application, arguing that the proposed amendments would be both confusing and unnecessary. The matter was heard in the Supreme Court of New South Wales.

The central legal issue was whether the court should permit the plaintiff to amend his pleadings, despite the opposition from the defendant, and the late timing of the application. The court had to consider whether the proposed amendments would be embarrassing, whether the plaintiff had provided a satisfactory explanation for the delay in making the amendments, and whether allowing the amendments would enable a just resolution of the dispute.

The court noted that the power to amend pleadings is discretionary and should be exercised to achieve justice in the case. While the court recognised that there was a presumption against allowing amendments after the close of pleadings, it also acknowledged that this presumption could be rebutted in appropriate circumstances. The court found that the plaintiff had not provided a satisfactory explanation for the delay in making the amendments, but nevertheless considered that the amendments would not be embarrassing and would enable a just resolution of the dispute. The court accepted that the amendments did not introduce new matters that would require the defendant to answer new pleadings, and that the defendant would not be disadvantaged by the amendments. The court therefore granted the application to amend the pleadings.

The court ordered that the plaintiff's statement of claim, particulars, and reply be amended as proposed, and that the defendant file an amended defence within 14 days of the order. The parties were directed to endeavour to reach an agreement on the costs of the application, and in the event of disagreement, to apply to the court for a costs order.

Orders