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 LtdRepresentation: Counsel:
Solicitors:
Plaintiff – Mr Gunning, M.
Defendant – Mr O’Connor, J.
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…
Keep reading for free
Create a free CaseChat account to read Walsh v KC & WL Brain Pty Ltd (No. 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2023] NSWDC 623
- Decision Date
CaseChat Overview and Summary
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.