Turner and Townsend Pty Ltd v Berry - [2012] FCA 111

FEDERAL COURT OF AUSTRALIA
Turner & Townsend Pty Ltd v Berry [2012] FCA 111

Citation: Turner & Townsend Pty Ltd v Berry [2012] FCA 111

Parties: TURNER & TOWNSEND PTY LTD ACN 115 688 830 v MARTIN RICHARD BERRY, JOHNSTAFF PROJECTS PTY LTD ACN 069 803 212, JOHNSTAFF PROJECTS (NSW) PTY LTD ACN 137 728 959, JAMES HOLBROOK and IOAN MORGAN

File number(s): QUD 561 of 2010

Judge: JAGOT J

Date of judgment: 16 February 2012

Catchwords: PRACTICE & PROCEDURE – application for leave to withdraw admissions – where applicant had not relied on the admissions – where respondent reasonably assumed the applicant had original documents supporting the admissions – principles in Drabsch v Switzerland General Insurance Co Ltd applied – leave granted

Cases cited: Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268
Drabsch v Switzerland General Insurance Co Ltd, unreported, 16 October 1996, Supreme Court of New South Wales, Santow J

Date of hearing: 16 February 2012

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 17

Counsel for the First Applicant: Mr D McLure

Solicitor for the First Applicant: Minter Ellison

Counsel for the First Respondent: Mr JR Clarke

Counsel for the Second, Third, Fourth and Fifth Respondents: Mr M Clarke

Solicitor for the Second, Third, Fourth and Fifth Respondents: White Ellis

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

QUD 561 of 2010

BETWEEN:
TURNER & TOWNSEND PTY LTD ACN 115 688 830
Applicant

AND:
MARTIN RICHARD BERRY
First Respondent

JOHNSTAFF PROJECTS PTY LTD ACN 069 803 212
Second Respondent

JOHNSTAFF PROJECTS (NSW) PTY LTD ACN 137 728 959
Third Respondent

JAMES HOLBROOK
Fourth Respondent

IOAN MORGAN
Fifth Respondent

JUDGE:

JAGOT J

DATE OF ORDER:

16 FEBRUARY 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The first respondent be granted leave nunc pro tunc to withdraw admissions made to paragraphs 18 and 19 of the applicant’s amended statement of claim.
2.The applicant pay the first respondent’s costs of the first respondent’s notice of motion filed on 16 December 2011 as agreed or taxed.
3.The second and third respondents be granted leave nunc pro tunc to withdraw admissions made to paragraphs 18 and 19 of the applicant’s amended statement of claim.
4.The second and third respondents’ costs of the first respondent’s notice of motion filed on 16 December 2011 be costs in the cause.
5.The applicant serve a draft further amended statement of claim re-pleading the allegations against the 4th and 5th respondents and accessorial liability of the 2nd and 3rd respondents based thereon by 5 March 2012.
6.The respondents are to notify the applicant whether they object to the applicant being granted leave to rely on the draft further amended statement of claim (and if so, give particulars for their objections) by 12 March 2012.
7.The matter be listed for further directions at 9.15 a.m. on 29 March 2012. The second and third respondents are to notify the first respondent of these orders.
8.The applicant’s interlocutory application…

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: [2012] FCA 111
Decision Date: 16 February 2012

CaseChat Overview and Summary

Turner and Townsend Pty Ltd, the applicant, sought leave to withdraw certain admissions made in its amended statement of claim against the Berry respondents. The Federal Court was asked to determine whether the applicant could withdraw admissions made in paragraphs 18 and 19 of its amended statement of claim, which related to the existence of certain documents and the authority of individuals within the respondent companies. The court was required to consider the principles established in Drabsch v Switzerland General Insurance Co Ltd, particularly those concerning the reliance on admissions and the assumptions of the opposing party.

The court held that the applicant had not relied on the admissions in question and that the respondents had reasonably assumed that the applicant had original documents to support the admissions. The Berry respondents had not suffered any prejudice as a result of the applicant's attempt to withdraw the admissions. The court found that the principles in Drabsch v Switzerland General Insurance Co Ltd applied, and the applicant was granted leave to withdraw the admissions nunc pro tunc. The court also ordered that the Berry respondents be granted leave to withdraw their admissions, and that the applicant pay the first respondent's costs of the notice of motion filed on 16 December 2011 as agreed or taxed. The second and third respondents' costs of the notice of motion were to be costs in the cause. The applicant was required to serve a draft further amended statement of claim by 5 March 2012, and the respondents were to notify the applicant of any objections to the draft further amended statement of claim by 12 March 2012.

The court further ordered that the matter be listed for further directions at 9.15 a.m. on 29 March 2012, that the second and third respondents were to notify the first respondent of these orders, that the applicant's interlocutory application filed on 10 February 2012 be dismissed, and that each party pay their own costs in connection with the interlocutory application. The second and third respondents' notice of motion filed on 16 December 2012 to strike out the applicant's claims against the fourth and fifth respondents was adjourned until 29 March.

Orders

Orders of the court

1. The first respondent be granted leave nunc pro tunc to withdraw admissions made to paragraphs 18 and 19 of the applicant’s amended statement of claim.

2. The applicant pay the first respondent’s costs of the first respondent’s notice of motion filed on 16 December 2011 as agreed or taxed.

3. The second and third respondents be granted leave nunc pro tunc to withdraw admissions made to paragraphs 18 and 19 of the applicant’s amended statement of claim.

4. The second and third respondents’ costs of the first respondent’s notice of motion filed on 16 December 2011 be costs in the cause.

5. The applicant serve a draft further amended statement of claim re-pleading the allegations against the 4th and 5th respondents and accessorial liability of the 2nd and 3rd respondents based thereon by 5 March 2012.

6. The respondents are to notify the applicant whether they object to the applicant being granted leave to rely on the draft further amended statement of claim (and if so, give particulars for their objections) by 12 March 2012.

7. The matter be listed for further directions at 9.15 a.m. on 29 March 2012. The second and third respondents are to notify the first respondent of these orders.

8. The applicant’s interlocutory application filed 10 February 2012 be dismissed.

9. Each party is to pay their own costs in connection with the applicant’s interlocutory application filed 10 February 2012.

10. The second and third respondents’ notice of motion filed 16 December 2012 to strike out the applicant’s claims against the fourth and fifth respondents be adjourned until 29 March.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Turner & Townsend Pty Ltd v Berry [2012] FCA 111
Parties:		TURNER & TOWNSEND PTY LTD ACN 115 688 830 v MARTIN RICHARD BERRY, JOHNSTAFF PROJECTS PTY LTD ACN 069 803 212, JOHNSTAFF PROJECTS (NSW) PTY LTD ACN 137 728 959, JAMES HOLBROOK and IOAN MORGAN
File number(s):		QUD 561 of 2010
Judge:		JAGOT J
Date of judgment:		16 February 2012
Catchwords:		PRACTICE & PROCEDURE – application for leave to withdraw admissions – where applicant had not relied on the admissions – where respondent reasonably assumed the applicant had original documents supporting the admissions – principles in Drabsch v Switzerland General Insurance Co Ltd applied – leave granted
Cases cited:		Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268 Drabsch v Switzerland General Insurance Co Ltd, unreported, 16 October 1996, Supreme Court of New South Wales, Santow J
Date of hearing:	16 February 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	17
Counsel for the First Applicant:	Mr D McLure
Solicitor for the First Applicant:	Minter Ellison
Counsel for the First Respondent:	Mr JR Clarke
Counsel for the Second, Third, Fourth and Fifth Respondents:	Mr M Clarke
Solicitor for the Second, Third, Fourth and Fifth Respondents:	White Ellis

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	QUD 561 of 2010

JUDGE:	JAGOT J
DATE OF ORDER:	16 FEBRUARY 2012
WHERE MADE:	SYDNEY