Walsh v KC & WL Brain Pty Ltd (No. 2) - [2023] NSWDC 623

District Court

New South Wales

Medium Neutral Citation: Walsh v KC & WL Brain Pty Ltd (No. 2) [2023] NSWDC 623
Hearing dates: 14 June 2023
Date of orders: 14 June 2023
Decision date: 14 June 2023
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
See par [9] and [11].

Catchwords:
Leave sought to withdraw ADMISSIONS made by defendant’s Counsel in Court without any explanation as to why the admissions were erroneous – Leave refused – Defendant sought to adduce further affidavit evidence in chief relating to quantum – Leave granted.

Legislation Cited:
Conveyancing Act 1919
Personal Properties Security Act 2009 (Cth)

Cases Cited:
Candy v GIO General Limited [2013] NSWSC 810
The Owners – Strata Plan 72739 v Allianz Australia Insurance Limited [2017] NSWSC 1118

Texts Cited:
Nil.

Category: Procedural rulings
Parties: Plaintiff – Alan David Walsh
Defendant – KC & WL Brain Pty Ltd
Representation:
Counsel:
Plaintiff – Mr Gunning, M.
Defendant – Mr O’Connor, J.
Solicitors:
Plaintiff – Rural Law.
Defendant – Walsh & Blair Solicitors.

File Number(s): 2020/00107856
Publication restriction: Nil.

Judgment

HIS HONOUR: Currently before me are two applications made by the Defendant. The first application is for leave to withdraw certain admissions that were made in evidence given on 4 March 2022. At that time, the Plaintiff, Mr Alan David Walsh, was being cross-examined by Mr O'Connor for the Defendant. He was being cross-examined about a number of items in a Scott Schedule that relates to various quantum meruit claims.
The relevant admissions concern items 6, 8, 9, and 10, in the Scott Schedule. Item 6 is a claim for two passes of Roundup/Weedmaster and Agritone per hectare, a total of $3,540. Item 8 is an application of another chemical, Majister, at the rate of 500 mls per hectare at a total cost of $5,520. Item 9 is the application of another chemical, Gramoxone, at 2 litres per hectare, being a total cost of $1,420.50. The final item is item 10, again, the application of a chemical known as Stopm/Rifle at 3.5 litres per hectare at a total cost of $5,190.50.
Concerning item 6, at page 53 line 11, the learned Counsel for the Defendant is recorded as saying this:

"O'CONNOR: Just in relation to the first item, your Honour, that is agreed. That's the two passes of Roundup/Weedmaster and Agritone?
WITNESS: Yes.
O'CONNOR:
Q. I'm just informing his Honour that my clients agree with that claim."

As to item 8, Mr O'Connor stated that that was agreed at T53.48. As to item 9, Mr O'Connor said that item was agreed at T51.01. As to Item 10, Mr O'Connor advised me that item was also agreed at T54.06. It is clear from the actual words that he initially used that he was making those admissions on instructions from his clients. When he referred to his clients in the plural, he was referring to the principals of the Defendant, Mr Ken Brain and his wife, Mrs Wendy Brain.
The principles relating to the withdrawal of admissions can…

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: [2023] NSWDC 623
Decision Date: 14 June 2023

CaseChat Overview and Summary

The case of Walsh v KC & WL Brain Pty Ltd (No. 2) involved the plaintiff seeking leave to withdraw admissions made by the defendant's counsel in court without providing an explanation as to why these admissions were incorrect. The defendant, on the other hand, sought leave to adduce further affidavit evidence in chief concerning the quantum of damages. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the plaintiff was entitled to withdraw admissions made by the defendant's counsel during the proceedings, particularly in the absence of any explanation for the perceived inaccuracies. Additionally, the court had to determine whether the defendant should be granted leave to adduce further affidavit evidence to substantiate the quantum of damages claimed.

The court held that the plaintiff was not entitled to withdraw the admissions made by the defendant's counsel without any explanation as to why these admissions were erroneous. The court reasoned that such admissions were binding on the parties and could only be withdrawn if there was a clear and convincing explanation as to why they were incorrect. As for the defendant's request to adduce further affidavit evidence in chief, the court granted leave, considering the importance of the quantum of damages in the case. The court found that the additional evidence could provide a clearer understanding of the damages claimed.

The final orders of the court were that the plaintiff was not granted leave to withdraw the admissions made by the defendant's counsel. However, the defendant was granted leave to adduce further affidavit evidence in chief relating to the quantum of damages. The specific details of these orders are outlined in paragraphs [9] and [11] of the judgment.

Orders

Orders of the court

See par [9] and [11].

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.

Medium Neutral Citation:	Walsh v KC & WL Brain Pty Ltd (No. 2) [2023] NSWDC 623
Hearing dates:	14 June 2023
Date of orders:	14 June 2023
Decision date:	14 June 2023
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See par [9] and [11].
Catchwords:	Leave sought to withdraw ADMISSIONS made by defendant’s Counsel in Court without any explanation as to why the admissions were erroneous – Leave refused – Defendant sought to adduce further affidavit evidence in chief relating to quantum – Leave granted.
Legislation Cited:	Conveyancing Act 1919 Personal Properties Security Act 2009 (Cth)
Cases Cited:	Candy v GIO General Limited [2013] NSWSC 810 The Owners – Strata Plan 72739 v Allianz Australia Insurance Limited [2017] NSWSC 1118
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	Plaintiff – Alan David Walsh Defendant – KC & WL Brain Pty Ltd
Representation:	Counsel: Plaintiff – Mr Gunning, M. Defendant – Mr O’Connor, J. Solicitors: Plaintiff – Rural Law. Defendant – Walsh & Blair Solicitors.
File Number(s):	2020/00107856
Publication restriction:	Nil.