Stafford v Kekatos (No 2) - [2008] NSWSC 1044

CITATION: Stafford & anor v Kekatos & anor (No 2) [2008] NSWSC 1044

HEARING DATE(S): 10 September 2008

JUDGMENT DATE :
8 August 2008

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 10 September 2008

DECISION: Application for leave to withdraw admissions dismissed.

CATCHWORDS: PROCEDURE – ADMISSIONS – application to withdraw admission that document was executed and delivered by defendants to plaintiffs – whether admission wrongly made – where prima facie reading of document discloses facts as pleaded and admitted – necessity for evidence indicating that admission is wrongly and/or inadvertently made – where first defendant maker of document not giving evidence in proceeding – whether admission inadvertently made – balance of prejudice.

CASES CITED: For the Good Times Pty Ltd v Coltern Pty Ltd [2007] NSWSC 108
Hill End Gold Ltd v First Tiffany Resource Corp [2008] NSWSC 866
Sirius Shipping Corporation v The Ship Sunrise [2006] NSWSC 164
SLE World Wide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816
Stafford v Kekatos [2008] NSWSC 810

PARTIES: Susan Stafford (first plaintiff)
Rhonda Dawn Stafford (second plaintiff)
Voula Kekatos (first defendant)
George Kekatos (second defendant)

FILE NUMBER(S): SC 4871/06

COUNSEL: Mr P Hallen SC w Mr E T Finnane (plaintiffs)
Mr M H Southwick (first defendant)
Mr C Stomo (second defendant)

SOLICITORS: Uther Webster & Evans (plaintiffs)
Kells The Lawyers (first defendant)
Proctor & Associates (second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
GENERAL LIST

BRERETON J

Wednesday, 10 September 2008

4871/06 Susan Stafford & Anor v Voula Kekatos & Anor

JUDGMENT (ex tempore; re application to withdraw admission by First and Second Defendants)

1 HIS HONOUR: Each defendant applies for leave to withdraw admissions contained in their defences to the Amended Statement of Claim and to amend their respective defences by substituting, for the current admission of the allegation in Amended Statement of Claim paragraph 44A – which alleges:

Further, the First Defendant, on or about 29 August 2004 executed the Undertaking and Authority and on or about that date provided it to the Plaintiffs by their agent Wayne Stafford.

a nonadmission of that allegation.

2 The relevant background so far as the proceedings and the pleadings are concerned is summarised in my judgment on the application for summary dismissal [see Stafford v Kekatos [2008] NSWSC 810].

3 Paragraph 44A of the Amended Statement of Claim refers to an undertaking and authority which bears the date 29 August 2004, was admittedly executed by the first defendant Mrs Voula Kekatos, and is in the following terms:

I Voula Kekatos hereby undertake and acknowledge that I will enter into the Agreement for Sale of Land to acquire Lots 1-5 Hume Highway Paddys River with the Receiver on behalf of the Penrose Quarry Trust signed this day by all the parties and shall apply all monies held by the parties pursuant to the Deed of Charge over Global to each respective party in accordance with the amounts stated 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.

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Details

Case: [2008] NSWSC 1044
Decision Date: 10 September 2008

CaseChat Overview and Summary

The case of Stafford v Kekatos (No 2) involved the plaintiffs seeking to withdraw an admission made by the defendants that a certain document was executed and delivered by them. The dispute was heard in the court, which had to determine whether the admission was made incorrectly. The document in question appeared, on its face, to support the facts as alleged and admitted. The court's task was to decide if there was enough evidence to suggest that the admission was made wrongly or inadvertently. This was complicated by the fact that the first defendant, who was the maker of the document, was not providing evidence in the proceeding. The balance of prejudice was also a factor the court had to consider in its decision.

The legal issues at the heart of this case revolved around the circumstances under which an admission in a legal proceeding can be withdrawn. The plaintiffs argued that the admission was wrongly made, and they sought to have it withdrawn. The defendants, on the other hand, maintained that the admission was correct and should stand. The court had to consider the necessity for evidence indicating that the admission was made mistakenly and whether the absence of evidence from the first defendant, who was the maker of the document, could affect the decision. The balance of prejudice between the parties also played a significant role in the court's reasoning.

In reaching its decision, the court emphasised the importance of a prima facie reading of the document. If the document on its face supported the facts as pleaded and admitted, this would generally be sufficient to uphold the admission. The court also considered that evidence indicating the admission was wrongly or inadvertently made would be necessary for it to be withdrawn. In this case, the court found that the first defendant's failure to give evidence did not necessarily mean the admission was inadvertently made. The balance of prejudice was assessed, and the court determined that there was no sufficient reason to allow the withdrawal of the admission. Therefore, the court upheld the admission as correctly made.

The final orders of the court confirmed that the admission made by the defendants that the document was executed and delivered by them to the plaintiffs would stand. The plaintiffs' application to withdraw the admission was dismissed, and the case proceeded with the admission remaining in place. The court's decision highlighted the importance of the balance of prejudice and the necessity of clear evidence to withdraw an admission in legal proceedings.

Orders