Streicholz Fabrik Pty Ltd v Taylor - [2025] VSC 309

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2022 00619

STREICHOLZ FABRIK PTY LTD (ACN 006 624 353) (and others according to the attached Schedule)	First Plaintiff/First Defendant by Counterclaim
and
GREGORY JOSEPH TAYLOR (and another according to the attached Schedule)	First Defendant/Plaintiff by Counterclaim

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JUDGE:	Attiwill J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April and 30 May 2025
DATE OF RULING:	5 June 2025
CASE MAY BE CITED AS:	Streicholz Fabrik Pty Ltd v Taylor
MEDIUM NEUTRAL CITATION:	[2025] VSC 309

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PRACTICE AND PROCEDURE – Application for leave to amend defence and counterclaim – Where application made after the trial was vacated, an unsuccessful mediation and the death of the second plaintiff/second defendant to counterclaim – Where leave opposed in relation to proposed new claims in the counterclaim – Whether claims have no real prospects of success – Where Court not satisfied that the claims have no real prospects of success - Where explanation for delay in making the application is inadequate – Where no irreparable prejudice to the first plaintiff/first defendant to counterclaim – Where prejudice to the first defendant/first plaintiff by counterclaim if leave not granted – Leave granted to amend to include claims – Carroll v Goff [2021] VSCA 267 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs and Defendants to Counterclaim	Mr S Goubran KC with Mr C Hibbard	MinterEllison
For the Defendants and Plaintiff by Counterclaim	Mr J Evans KC with Mr C Salpigtidis	Moray & Agnew

HIS HONOUR:

INTRODUCTION

The first defendant/plaintiff by counterclaim, Mr Taylor, and the second defendant, Headland Properties Pty Ltd, (collectively the Taylor parties) seek leave to file and serve a fourth further amended defence and second further counterclaim. The first plaintiff/first defendant to counterclaim, Streicholz Fabrik Pty Ltd, (Streicholz) opposes leave to amend to include the proposed new claims in the counterclaim set out in paragraphs 34 to 56 and paragraphs E to G and I of the prayer for relief. The proposed new claims are sought to be made against Streicholz and no other defendant to counterclaim. Streicholz and 560 Matchworks Holding Pty Ltd do not oppose the amendments set out in paragraphs 4E, 4F, 4G, 5(fa), 5(j), 6(b)(i), 6(b)(ii), 6I, 6JA, 6Q, 8(ca), 25 and paragraph B(g) of the prayer for relief.

The application was adjourned (part heard) on 11 April 2025 to give further time for the Taylor parties to put on additional material on the question of delay in seeking leave to amend. The application returned to Court on 16 May 2025 but was adjourned to give both parties an opportunity to consider and address the impact of the death of the second plaintiff/second defendant to counterclaim, Mr Hamilton. The Court has been informed that all the persons named as executors in the Will of Mr Hamilton consent to being substituted as a party in place of Mr Hamilton, including as a plaintiff, and have stated that they will not…

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: [2025] VSC 309
Decision Date: 5 June 2025

CaseChat Overview and Summary

Streicholz Fabrik Pty Ltd sought leave to amend its defence and counterclaim against Taylor. The case was before the Supreme Court of Victoria. The central dispute was the proposed amendment to the defence and counterclaim, which included new claims, made after the initial trial was vacated due to procedural errors, an unsuccessful mediation, and the death of one party. The primary legal issues revolved around whether the proposed new claims in the counterclaim had any real prospects of success and whether the delay in making the application was justified. Additionally, the court needed to assess whether denying the application would cause irreparable prejudice to the remaining parties.

The court considered the balance of convenience and the likelihood of success of the new claims. It noted that while the proposed new claims were not guaranteed to succeed, they did not lack all prospects of success. The explanation for the delay in making the application was deemed inadequate, but the court found that the remaining party would not be irreparably prejudiced if the application was granted. However, the first defendant/first plaintiff would suffer prejudice if the application was denied, as it would limit their ability to fully present their case. The court applied the principles from Carroll v Goff, finding that the balance of convenience favoured granting leave to amend to include the new claims.

The court granted leave to Streicholz Fabrik Pty Ltd to amend its defence and counterclaim to include the proposed new claims. The court emphasised that while the explanation for the delay was not satisfactory, the prejudice to the first defendant/first plaintiff if the application were denied outweighed the shortcomings in the explanation for the delay. The court's decision allowed the case to proceed with a more comprehensive presentation of the counterclaim, ensuring that all relevant issues could be properly addressed in the trial.

Orders