Tsangaris v Inner Red Shell P/L
[2003] NTSC 44
•1 May 2003
Tsangaris v Inner Red Shell P/L & Anor [2003] NTSC 44
PARTIES:MICHAEL TSANGARIS
v
INNER RED SHELL PTY LTD
(ACN 068 986 363)
and
THEOPHANIS KATAPODIS
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:LA 14/02 (20104985)
DELIVERED: 1 May 2003
HEARING DATES: 25 February 2003
JUDGMENT OF: THOMAS J
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:P Cantrill
Respondent: J Dearn
Solicitors:
Appellant:Asha McLaren
Respondent: Brian Johns
Judgment category classification: C
Judgment ID Number: tho200313
Number of pages: 20
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINTsangaris v Inner Red Shell P/L & Anor [2003] NTSC 44
No. LA 14/02 (20104985)
BETWEEN:
MICHAEL TSANGARIS
Appellant
AND:
INNER RED SHELL PTY LTD
(ACN 068 986 363)
First Respondent
and:
THEOPHANIS KATAPODIS
Second Respondent
CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 1 May 2003)
This is an application for leave to appeal pursuant to s 19(3) of the Local Court Act and an appeal pursuant to s 19(1) of the Local Court Act.
Counsel for the appellant submits this is an appeal from a final order made by the learned magistrate so that leave is not required. However, the appellant makes such application for leave from an abundance of caution.
On 15 November 2002, the learned stipendiary magistrate delivered written reasons for decision. For the reasons which he published he made the following orders:
"39.Judgment will be entered on behalf of the first defendant against the plaintiff in relation to the claim purportedly set out (since it is not at all) in the Amended Statement of Claim, pursuant to the provisions of LCR 28.01(1)(a).
40.Judgment will be entered on behalf of the 2nd defendant, in terms of LCR 28.01(1)(a) on the same basis.
41.There has not been any ventilation on any issue of costs. In the absence of agreement, the Court will consider questions of costs upon the matter being fixed for argument in the conventional way."
The appellant appeals from the decision as set out below:
"1.Decision and Order of the learned magistrate whereby the Court ordered pursuant to Part 28 Rule 1 of the Local Court Rules to grant peremptory judgment to the First and Second Respondents in respect of the Applicant's claim;
2.Decision and Order of the learned magistrate whereby the Court refused to grant the Applicant an adjournment to further amend his Statement of Claim;
3.Decision and Order of the learned magistrate whereby the Court refused to permit the Applicant to cross-examine a witness on whose behalf an affidavit was filed in support of the Respondents' Application and in respect of whom the Applicant had given the Respondents' notice that the witness was required for cross-examination;"
The grounds of appeal as set out in the draft notice of appeal are as follows:
"1.That the learned Stipendiary Magistrate erred in law in holding that the Amended Statement of Claim of the Applicant failed to disclose a cause of action against the Second Respondent;
2.That the learned magistrate erred in law in all the circumstances in refusing permission of the Applicant to cross-examine the Second Respondent on the Affidavit filed on his behalf in support of his applicant to strike out the Applicant's pleading;
3.That the refusal of the learned magistrate in all the circumstances to permit the Applicant to cross-examine the Second Respondent on his Affidavit constituted a denial of natural justice to the Applicant;
4.That the learned magistrate erred in law in all the circumstances in refusing to grant the Applicant an adjournment to meet material contained in Affidavits filed by the Respondents shortly before the hearing;
5.That the refusal of the learned magistrate in all the circumstances to grant the Applicant an adjournment to meet material contained in Affidavits filed shortly before the hearing constituted a denial of natural justice to the Applicant."
Background
The background to this matter is as follows:
The appellant commenced proceedings in the Darwin Local Court by statement of claim issued on 26 March 2001. These proceedings were subsequently amended by the filing of an Amended Statement of Claim dated 19 July 2001. Copy of this Amended Statement of Claim is Annexure "A" to the affidavit of Asha McLaren sworn 29 November 2002. This Amended Statement of Claim alleges an oral partnership agreement between the appellant and the second respondent to carry on the business of building construction. This included purchasing land, building houses, selling the houses at a profit to be divided equally between the appellant and the second respondent. The appellant's claim is in respect of the second respondent's alleged failure to perform his obligations under the oral agreement.
On 14 October 2002, an application by the respondents came before the Local Court. The respondents' made an application to strike out the appellant's claim for alleged failure to supply proper and sufficient particulars and further on the basis that the Amended Statement of Claim disclosed no proper cause of action.
In the proceedings before the learned stipendiary magistrate counsel appearing for the appellant conceded that the Amended Statement of Claim did not disclose a cause of action against the first respondent. Counsel for the appellant sought an adjournment to enable her to further amend the Statement of Claim. It was the contention on behalf of the appellant in the Local Court that the cause of action pleaded against the second respondent was essentially the same as the cause of action against the first respondent. The appellant's claim was that the entire partnership between the appellant and the second respondent was conducted through the company being the first respondent. It was submitted to the learned stipendiary magistrate that the second respondent was in reality the company, being the first respondent (company) because the second respondent owned all of the beneficial shares in the company and was the sole director of the company. Counsel for the appellant maintained that the second respondent was acting on behalf of the first respondent and he bound the company by his representations. It was conceded, on behalf of the appellant, that the causal link was not in the pleadings but it was submitted this could be rectified by an amendment to the Statement of Claim.
There were then further submissions and discussion concerning the respondents' right to have the claim struck out because the appellant had failed to provide particulars. This ultimately was not an issue and did not form any part of the learned stipendiary magistrate's reasons for decision.
Counsel on behalf of the appellant also sought an adjournment to enable her to file an affidavit in response to the affidavit of the second respondent as she had anticipated being able to cross examine the second respondent on his affidavit. However, by order of the learned magistrate she had been precluded from conducting such cross examination (tp 43 - 44):
“MS McLAREN: Your Worship, this is a very, very important issue for the plaintiff and I respectfully seek Your Worship’s indulgence in allowing me to get some instructions from my client. And also have a look at the law relating to it so that I can counter those arguments.
Now I came prepared, Your Worship, having given my learned friend notice that I will want the second defendant to be cross-examined in this case - - -
HIS WORSHIP: Well, you can’t ask for that, this is an application under the rules, for relief that’s permitted by the rules. It’s governed by the rules and by a whole body of precedence, you can’t cross-examine people in relation to issues arising in an interlocutory application of this nature.”
It was submitted that the appellant's essential case is that the appellant did all the work on four properties owned by relatives of the second respondent. The appellant had advised as to a fair market price for these constructions which on the appellant's argument the second respondent had failed to implement. The appellant alleges the second respondent gave quotations that were far below the fair market value of the premises resulting in a benefit to certain relatives of the second respondent and a loss to the partnership. The allegation is the second respondent did not carry out his duty to his partner, the appellant.
It was submitted on behalf of the appellant that when a proper account and audit of the company's financial records are undertaken it will reveal that a number of expenses are not reasonable or legitimate expenses of the company and that the appellant is entitled to have these assessed as a profit of the partnership.
Counsel for the appellant then directed his Worship's attention to certain passages from Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and Dow Hager Lawrance v Lord Norreys and Others (1890) 15 AC 210 (tp 24 - 25):
“MS McLAREN: …. I refer to Dey v Victorian Railways Commissioners, …. quoting from page 91 where Dixon J says:
‘The application is rarely made to the inherent jurisdiction of the court to stop the abuse of its process when it’s employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’
…………
Then in the same page at page 92 or - this is the High Court of Australia in Dey v Victorian Railways:
‘It is in my opinion of more importance to maintain the integrity of the principle that under cover of the inherent jurisdiction to stop abuse of process litigants are not to be deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose than for this Court to add another to the many judicial attempts that have been made to construe and apply the perplexing provisions that stand in Victoria as s 5(2)(b) of the Workers’ Compensation Act 1928.’
………..
MS McLAREN: …… in Lawrance v Lord Norreys … Page 219, Your Worship, Herschell L says:
‘It cannot be doubted that the Court has an inherent jurisdiction to dismiss an action which is an abuse of process of Court. It is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases. I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved. …’
And in this case he said:
‘… the Court of Appeal did not proceed on that ground. They took into consideration all the circumstances of the case. We have, to begin with, a statement of claim which, if it discloses a concealed fraud within the meaning of the statute, does so in the barest fashion - - -’”
Counsel for the appellant submitted the cause of action is the same in respect of the first and second respondent, that this can be gleaned from the pleadings, both the Amended Statement of Claim and the defence that has been filed. On behalf of the appellant counsel sought an adjournment in the Local Court to file a further Amended Statement of Claim to clarify the cause of action in respect of the first respondent, and to enable her to prepare and file an affidavit in response to the affidavit filed by the second respondent and upon which she had been refused her request to cross examine.
Mr Dearn, counsel for the first and second respondent, submitted that the Amended Statement of Claim as it presently exists discloses no cause of action against the first respondent. Mr Dearn advised that the second respondent had flown from Patras in Greece to Darwin at the request of counsel for the appellant who had required the second respondent for cross examination on his affidavit. This trip was made at considerable expense to the second respondent. Mr Dearn submitted that counsel for the appellant is not entitled to cross examine the second respondent. His Worship noted that there was no controversial affidavit material and therefore the court was not entitled to go behind the affidavit filed on behalf of the respondents. The learned stipendiary magistrate also stated with respect to submissions made from the Bar Table by counsel for the appellant that if it was not in affidavit form or in the pleadings he would not have regard to it.
Mr Dearn further submitted on behalf of the respondents that it was not appropriate for the appellant to now state that she wanted an opportunity to file an affidavit dealing with an affidavit filed by the second respondent six months before i.e. in April 2002.
There were some further submissions relating to the counter claim which his Worship pointed out was not before him and he was not required to adjudicate upon the counter claim.
It was the submission before the learned stipendiary magistrate on behalf of the respondents that the appellant's Statement of Claim has been from the start defective and deficient. The Amended Statement of Claim still disclosed no cause of action against the first respondent. The submission on behalf of the respondent was that at least to some extent the further and better particulars and the further and better discovery are deficient and defective.
Thirdly, the submission on behalf of the respondent is that there are 11 affidavits filed by the respondents in support of the application to strike out the appellant's Statement of Claim. There have been no affidavits filed for the appellant on the strike out application. The appellant has put the second respondent to considerable expense by requiring his attendance at court for cross examination on his affidavit sworn in April 2002 where there was no affidavit filed on behalf of the appellant to contradict the affidavit evidence of the second respondent. It is the submission for the respondents that the process continues to be oppressive, vexatious and an abuse of process and the appellant's claim should be struck out.
Counsel for both parties then referred his Worship to the publication of Cairns on the Australian Civil Procedure on the issue of whether or not counsel had the right to cross examine the second respondent on his affidavit.
The learned stipendiary magistrate accepted in his written reasons for decision delivered on 15 November 2002, that counsel for the appellant was entitled to cross examine the second respondent upon his affidavit sworn April 2002. The second respondent was present for the purpose of cross examination. Counsel for the appellant had been refused the right to cross examine the second respondent on his affidavit.
His Worship stated in his written reasons that (par 9):
"In respect of the contents of Katapodis' affidavit this Court will treat same as it would have if he had not attended Court in response to the request he do so.."
The learned stipendiary magistrate then canvassed some of the matters raised in the affidavit of Theophanis Katapodis. He notes that the appellant had filed no affidavit material contesting the accuracy of those facts.
The learned stipendiary magistrate then referred to matters in the other supporting affidavit in particular the affidavit of Leonidas Skliros sworn 28 April 2002 and the affidavit of Leo Cleanthous sworn 4 April 2002. Because there had been no material filed on behalf of the appellant putting in issue the allegations by the other deponents and the other deponents had not been required for cross examination, his Worship found that the matters set out in their affidavit were conclusive. The learned stipendiary magistrate further found that this meant the matters in the affidavit of Theophanis Katapodis were merely corroborative of allegations in other affidavits filed and as a consequence, the second respondent, Mr Katapodis, was not cross examined nor his evidence disregarded. The learned stipendiary magistrate concluded (par 21):
"… In all the circumstances the contents of all the affidavits referred to will be regarded as evidence and full weight will be given to the contents of such affidavits including the Katapodis' affidavit."
His Worship found that in light of the affidavit material he had referred to and accepted on behalf of the first and second respondent, the respondents were each entitled to judgment pursuant to the provision of Local Court Rule 28.01(1)(a).
Local Court Rule 28.01 provides as follows:
"28.01 Stay or judgment in proceeding
(1) Where a proceeding generally or a claim in a proceeding –
(a) does not disclose a cause of action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the Court,
the Court may stay the proceeding generally or in relation to a claim or give judgment in the proceeding generally or in relation to a claim.
(2) Where a defence to a claim in a proceeding –
(a) does not disclose an answer;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the Court,
the Court may give judgment in the proceeding generally or in relation to the claim.
(3) In this rule –
(a) a claim in a proceeding includes a counterclaim and a claim by third party notice; and
(b) a defence includes a defence to a counterclaim and a defence to a claim by third party notice."
In his written reasons for decision the learned stipendiary magistrate indicated that although it was not necessary for him to so decide he would have struck out the Amended Statement of Claim pursuant to Local Court Rule 28.02 on the basis that the cause of action which it was attempted to plead was manifestly hopeless. Local Court Rule 28.02 provides as follows:
"28.02 Striking out pleading
Where a pleading –
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair hearing of the proceeding; or
(d) is otherwise an abuse of the process of the Court,
the Court may order that the whole or part of the pleading be struck out or amended. "
The appellant has conceded that the Amended Statement of Claim does not disclose a cause of action against the first respondent and sought an adjournment to file a further Amended Statement of Claim.
I agree with the submission made to this Court that counsel for the appellant was entitled to cross examine the second respondent, Mr Katapodis, on his affidavit. The second respondent was present at Court having arrived there at the request of counsel for the appellant for the purpose of being cross examined. Counsel for the appellant was stopped from cross examining the second respondent on his affidavit. I consider this amounted to a denial of natural justice in circumstances where the learned stipendiary magistrate ultimately relied on the second respondent's affidavit in support of the application to strike out the Amended Statement of Claim.
I accept that the refusal to grant an adjournment was a discretionary decision for the learned stipendiary magistrate. The onus upon the appellant seeking to disturb a discretionary decision is a heavy one (Lovell v Lovell 1950 81 CLR 515 at 533 per Kitto J).
There is a strong presumption in favour of correctness of a discretionary judgment. In Australian Coal and Shale Employees' Federation & Anor v The Commonwealth & Ors (1953) 94 CLR 621 Kitto J said at 627:
"… A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law responses in the court of first instance: House v. The King (1936) 55 CLR 499 at 504 – 505. …"
The refusal to grant an adjournment by the learned stipendiary magistrate is a discretionary decision an appeal court will seldom interfere with a decision refusing grant of an adjournment.
In GSA Industries P/L v NT Gas Ltd (1990) 24 NSWLR 710, Samuels JA states at 715:
"The refusal to grant an adjournment is a classic exercise of judicial discretion. Hence it is only in rare circumstances that it is amenable to review by an appellate court. In Rogers v Barisic (Court of Appeal, 7 August 1984, unreported), I endeavoured to indicate some of the circumstances to which intervention is authorised by law.
I referred to two English cases: Evans v Bartlam [1937] AC 473, and to what was said by Atkin LJ in Maxwell v Keun [1928] 1 KB 645 at 653. The reference by Atkin LJ to the defeat of '… the rights of the parties altogether' (at 653) I understood, as I endeavoured to make clear in my judgment, as being a way of referring to what was said by the majority in House v The King (1936) 55 CLR 499 at 505, to the effect that although the nature of the error may not be discoverable, if the consequence is plainly unreasonable or unjust it may be inferred that a substantial wrong has, in fact, occurred, which necessarily involves the miscarriage of the discretion. It is worth point out that, in Maxwell, Atkin LJ (at 657) said this:
'The result of this seems to me that in the exercise of a proper judicial discretion no judge ought to make such an order as would defeat the rights of a party and destroy them all together, unless he is satisfied that he [that is the defeated party] has been guilty of such conduct that justice can only properly be done to the other party by coming to that conclusion.'"
The power to strike out a pleading as disclosing no reasonable cause of action should be exercised only in plain and obvious cases (General Steel Industry Inc v Commissioner for Railways (1964) 112 CLR 125). See also Dey v Victorian Railways Commissioners (supra) at 91.
In the case before this Court, the Amended Statement of Claim discloses a cause of action against the second respondent. The cause of action as outlined in the Amended Statement of Claim is the assertion of an oral partnership agreement to carry out certain activities relating to the building and construction of houses and a division of the profits between the appellant and the second respondent.
The appellant's claim is that the second respondent failed to quote a fair price in respect of the construction of certain properties and gave quotations far below the market value of the premises which was a failure to carry out his duties in respect of the partnership.
In par 4 of the Amended Statement of Claim it is asserted the second respondent orally agreed with the appellant to conduct business through the first respondent, award the appellant shares in the first respondent and make the appellant co-director of the first respondent.
The Amended Statement of Claim does not disclose a cause of action against the first respondent but does suggest what that cause of action would be.
At the outset of her submissions to the learned stipendiary magistrate on the application that the Statement of Claim be struck out, Ms McLaren, counsel for the appellant, sought an adjournment to file a further Amended Statement of Claim. Counsel for the appellant acknowledged that the Amended Statement of Claim did not disclose a cause of action against the first respondent.
Counsel for the appellant further sought to cross examine the second respondent on his affidavit filed in support of the application to strike out the Statement of Claim. The second respondent was present at Court in response to a request from counsel for the appellant for the purpose of cross examining him on the affidavit.
Counsel for the appellant then sought an adjournment to enable her to file affidavits on behalf of the appellant in reply to the affidavit filed on behalf of the respondents on the application to strike out the Statement of Claim. The application to adjourn to enable counsel for the appellant an opportunity to file affidavits in reply was made because the learned stipendiary magistrate had refused counsel for the appellant leave to cross examine the second respondent on his affidavit.
In his written reasons for decision delivered on 1 November 2002, the learned stipendiary magistrate deals with this issue in par 9 as follows:
"The deponent to Katapodis’ affidavit was required by facsimile communication delivered on behalf of the plaintiff to the solicitors on record for the defendants to attend for cross-examination. At the time the application was made he was apparently available to be cross-examined but was not cross-examined, partly because the Court could not accommodate the parties with the provision of the time necessary for that exercise. Although initially the Court expressed the view that cross-examination of the 2nd defendant on an application made pursuant to LCR 28.01 was not appropriate, the plaintiff’s practitioner has filed an authority in the form of an extract from a text “Australian Civil Procedure” (Cairns) which expresses the following proposition (in relation to affidavit evidence on interlocutory applications):-
'This is subject, of course to the deponent being cross-examined if necessary'
There is expression as to the Court’s power which exists upon the occasion of a deponent having been ordered to attend not in fact attending. The same authority propounds:-
'When a deponent does not attend the Court decides whether his affidavit is to be admitted and the weight which ought to be given to it. This is discretionary and the nature of the proceedings and the contents of the affidavit are important factors.'
In respect of the contents of Katapodis’ affidavit this Court will treat same as it would have if he had not attended Court in response to the request he do so."
I have set out hereunder the complete quote by Cairns from the 4th Edition of Australian Civil Procedure at 530 – 531:
"Affidavits
The rules set out the requirements which affidavits have to meet.
Evidence in interlocutory applications is given on affidavit. Affidavit evidence is given in proceedings for final relief if the only issue is a question of law. The court may order the deponent to attend for cross-examination, but if it does not the affidavit stands alone. The court may in proper cases allow all the evidence in a trial to be given on affidavit. A more usual procedure is for the evidence of particular witnesses to be given on affidavit if for sufficient reason they cannot attend the trial. A party who intends to cross-examine the deponents of the affidavits filed by an opponent should serve the opponent with a notice to that effect. The court may order them to attend the hearing. When a deponent does not attend, the court decides whether the affidavit is to be admitted and the weight which ought to be given to it. This is discretionary and the nature of the proceedings and the contents of the affidavit are important factors.
Once an affidavit is filed it may be used by an opposite party, even if it is not used by the party who filed it."
His Worship then analyses the matters set out in the affidavit of the second respondent, Mr Katapodis, and noted the appellant had not filed any affidavit material contesting the accuracy of those facts.
The learned stipendiary magistrate did a similar analysis of the affidavit of Mr Skliros and Mr Cleanthous and noted that no affidavit material had been filed by the appellant contesting any of these assertions. He than noted that the second respondent was the only deponent to any affidavit who had been required to attend for cross examination. His Worship then reasoned that even without the evidence of Mr Katapodis the facts deposed to in particular in the affidavit of Mr Cleanthous were "telling if not conclusive". His Worship then found that being the case the affidavit of the second respondent was merely corroborative of allegations in other affidavits. For that reason the affidavit of the second respondent was not disregarded and his Worship found (par 21):
"… In all the circumstances the contents of all the affidavits referred to will be regarded as evidence and full weight will be given to the contents of such affidavits including the Katapodis’ affidavit."
I find that this process of reasoning discloses an error. The law is that counsel for the appellant was entitled to cross examine the second respondent on his affidavit. The second respondent had received notification of a requirement to attend for cross examination. He had in fact travelled from Greece and was at Court for that very purpose. The learned stipendiary magistrate denied counsel for the appellant the right to cross examine the second respondent on his affidavit filed in support of the application to strike out the Amended Statement of Claim. This was essentially on the basis that counsel for the appellant had no entitlement to cross examine the second respondent on his affidavit. Counsel for the appellant was then refused an application for an adjournment to file an affidavit in reply. The learned stipendiary magistrate has relied at least in part on the matters set out in the affidavit of the second respondent to make a finding that pursuant to Local Court Rule 28.01 the Amended Statement of Claim does not disclose any course of action (par 25). In par 34 of his reasons for decision the learned stipendiary magistrate further finds that in light of the affidavit material the provisions of Local Court Rule 28.01(1)(a) are satisfied and no cause of action is disclosed against the second respondent.
I have concluded that in these circumstances an order that judgment be entered in favour of these respondents amounted to a denial of natural justice and for this reason the discretion of the learned stipendiary magistrate in refusing the appellant's application for an adjournment erred.
His Worship also indicated that had he not made orders pursuant to 28.01(1)(a) of the Local Court Rules he would have struck out the Amended Statement of Claim pursuant to 28.02 of the Local Court Rules. This was on the basis that the learned stipendiary magistrate considered the cause of action attempted to be pleaded was manifestly hopeless.
For reasons I have already stated, I consider this would also have been an error in the exercise of the discretion.
I do not consider this is a matter in which leave to appeal is required as the order of the learned stipendiary magistrate was in effect a final order. However, if I am wrong and leave to appeal is required, then I would grant leave to appeal.
I would allow the appeal.
Accordingly, I make the following orders:
1.That the judgment and orders of the learned stipendiary magistrate made on 15 November 2002 be set aside.
2.That the applicant be granted leave to file and serve a further Amended Statement of Claim within 14 days from the date of this order.
3.I grant leave to the parties to make an application on the issue of costs if the question of costs is not agreed between them.
_____________________________________
0