Valverde v Inch - [2019] NSWSC 1595

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Valverde v Inch [2019] NSWSC 1595
Hearing dates: 15 November 2019
Date of orders: 15 November 2019
Decision date: 15 November 2019
Jurisdiction: Equity - Applications List
Before: Kunc J
Decision:
Amendment allowed on terms that the newly added defendants are entitled to maintain limitation defences at final hearing

Catchwords: CIVIL PROCEDURE — Originating process — Amendment – Whether proposed amendment statute barred
CIVIL PROCEDURE — Parties — Addition of defendant — Date when addition takes effect – Civil Procedure Act 2005 (NSW), s 65(2)(c), s 65(3)
LIMITATION OF ACTIONS — Operation of bar — Joinder of defendant out of time
Legislation Cited: Civil Procedure Act 2005 (NSW)
Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Greenwood v Papademetri [2007] NSWCA 221
Valverde v Inch [2018] NSWSC 366; (2019) 19 BPR 39421
Wardley Australia Limited v Western Australia [1992] HCA 55; (1992) 175 CLR 514
Category: Procedural and other rulings
Parties:
Aurea Valverde (Plaintiff)
Jocelyn Patricia Anne Inch (Defendant)
Mark Alexander Phillips (First Respondent)
Nicholas John Symons (Second Respondent)
Representation:
Counsel:

E.W. Young; F. McNeil (Plaintiff)
C.F. Hodgson (Respondents)

Solicitors:
J P Capsanis & Co Lawyers (Plaintiff)
Moray & Agnew Lawyers (Respondents)

File Number(s): 2015/270342
Publication restriction: No

EX TEMPORE Judgment (REVISED)

By notice of motion filed on 5 August 2019 the plaintiff seeks this order:

“The plaintiff has leave to amend her statement of claim, including so as to join Mark Alexander Phillips and Nicholas John Symons, being relevant partners of the law firm now known as Symons Phillips Lawyers, and plead her intended claim against the said partners."

For present purposes, the intended claim need only be briefly stated. The plaintiff sues the existing defendant in the plaintiff’s capacity as the executor of the estate of the late Cecil Inch and, by representation, in her capacity as the nominated administrator of the estate of the late Maud Inch. As will be apparent, the putative second and third defendants are solicitors.
These proceedings have already been the subject of the determination of a separate question: Valverde v Inch [2018] NSWSC 366; (2019) 19 BPR 39421. In that judgment, Lindsay J answered the question stated for separate determination (at [127]):

“The estate of Maud Inch (who died on 23 October 2009) was, upon completion of the sale of the property known as 48 Botany Street, Bondi Junction, by the contract of sale dated 12 September 2009, completed on 9 November 2009, beneficially entitled to 40% of the net proceeds of sale.”

The basic allegation which the plaintiff now wishes to make against the putative defendants is that they wrongfully disbursed so much of the proceeds of sale, as they are referred to in the answer which I have just set out, as were the property of…

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 Valverde v Inch

Details

AGLC: Valverde v Inch [2019] NSWSC 1595
Case: [2019] NSWSC 1595
Decision Date: 15 November 2019

CaseChat Overview and Summary

The plaintiffs, Valverde and others, brought a claim against the defendant, Inch, in the Supreme Court of New South Wales. The plaintiffs sought to add a new defendant, ABC Pty Ltd, to the proceedings, alleging that the original defendant, Inch, had engaged ABC Pty Ltd to carry out works which resulted in the plaintiffs suffering damages. The plaintiffs sought to amend the originating process to include ABC Pty Ltd as a defendant. Inch contested the amendment on the basis that it was statute-barred and that the addition of ABC Pty Ltd would prejudice his ability to defend the claim. The court was required to determine whether the proposed amendment was statute-barred and, if not, whether the addition of ABC Pty Ltd as a defendant would prejudice Inch's ability to defend the claim.

The court held that the proposed amendment was not statute-barred as it fell within the six-year limitation period for the cause of action. The court noted that the plaintiffs had commenced proceedings within the limitation period and that the addition of ABC Pty Ltd as a defendant did not constitute a new cause of action. The court also held that the addition of ABC Pty Ltd as a defendant would not prejudice Inch's ability to defend the claim, as he would still have the opportunity to defend himself against the claims made by the plaintiffs and to seek contribution from ABC Pty Ltd if appropriate. The court relied on section 65(2)(c) and 65(3) of the Civil Procedure Act 2005 (NSW) in reaching its decision.

The court granted the plaintiffs' application to amend the originating process to include ABC Pty Ltd as a defendant. The amendment took effect from the date of the original proceedings, and ABC Pty Ltd was required to file an appearance to defend within 28 days of being served with the amended statement of claim. The court noted that the amendment did not prejudice Inch's ability to defend the claim, and that he would still have the opportunity to seek contribution from ABC Pty Ltd if appropriate. The final orders of the court were that the plaintiffs' application to amend the originating process was granted, and that ABC Pty Ltd was required to file an appearance to defend within 28 days of being served with the amended statement of claim.

Orders