Wendt v Northwood - [2003] NSWSC 546

CITATION: Wendt v Northwood [2003] NSWSC 546

HEARING DATE(S): 02/06/03; 03/06/03; 04/06/03; 05/06/03;

JUDGMENT DATE:
24 June 2003

JUDGMENT OF: Shaw J

DECISION: (1) Confirm entry of judgment for second defendant; (2) Confirm plaintiff is to pay the costs of the second defendant; (3) Plaintiff granted leave to rely upon amended statement of claim; (4) Matter referred to list judge to set further trial date; (5) Costs of the proceedings thrown away by the amendment to be first defendant's costs in the cause.

CATCHWORDS: Procedure - application to amend pleadings three days into trial - whether fresh proceedings arguable - whether prejudice to the defendant

LEGISLATION CITED: Supreme Court Rules 1970 (NSW) Part 20

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336;
Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84;
Cropper v Smith (1884) 26 Ch D 700;
Londish v Gulf Pacific Pty Ltd (1993) 117 ALR 361;
McGee v Yeomans [1977] 1 NSWLR 273;
Proctor v Jetway Aviation Pty Ltd (1984) 1 NSWLR 166;
Queensland v JL Holdings Ltd (1997) 189 CLR 146;
Tindesley v Harper (1978) 10 Ch D 393;
Ting v Blanche (1993) 118 ALR 543;
White v Illawarra Mutual Building Society Ltd [2002] NSWCA 164;

PARTIES :
Roy Wendt - Plaintiff
Kenneth Edward Northwood - First defendant
Registrar General - Second defendant

FILE NUMBER(S): SC 20172/00

COUNSEL: W Haffenden - Plaintiff
D Williams - First defendant
T Barrett - Second defendant

SOLICITORS: Kenneally & Co Solicitors - Plaintiff
Acuiti Legal Solicitors - First defendant
Kenneth Hall - Second defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Shaw J

24 June 2003
20172 of 2000

Roy Wendt (Plaintiff)

v

Kenneth Edward Northwood (First defendant)

and
Registrar General (Second defendant)
JUDGMENT

1 Shaw J: In this matter a verdict has been entered for the second defendant and an order has been made for the plaintiff to pay the second defendant’s costs as assessed or agreed. Further, it has been noted that the plaintiff has the right to seek indemnity for those costs from the first defendant.

2 Some time in the past the plaintiff won a prize in a lottery. Prior to 5 June 1998, it is alleged that the plaintiff was the registered proprietor of property at 48 New South Head Road, Vaucluse. He apparently granted an option to the Australian Commercial and General Corporation Pty Limited (ACG) to purchase the land in March 1997, and it is alleged that a woman (Mrs Howard, a former bankrupt, who is not a party to these proceedings), on behalf of AGC, requested ‘vendor finance’ from the plaintiff for the purchase of the land to be secured by way of an unregistered mortgage benefiting the plaintiff.

3 Without going into the full details of the statement of claim, it is sufficient to state for present purposes that what is alleged is misrepresentation by, or on behalf of, ACG and that the first defendant, a solicitor, acted…

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 Wendt v Northwood

Details

AGLC: Wendt v Northwood [2003] NSWSC 546
Case: [2003] NSWSC 546
Decision Date: 24 June 2003

CaseChat Overview and Summary

In the matter of Wendt v Northwood, the Federal Court of Australia was tasked with determining the admissibility of an application to amend pleadings that was submitted by the plaintiff, Wendt, three days into the trial against the defendant, Northwood. The primary dispute centred on whether the proposed amendments were arguable and whether such amendments would cause undue prejudice to the defendant.

The court was required to decide whether the proposed amendments to the pleadings were arguable on the facts and law, and if so, whether it was appropriate to allow the amendments despite the advanced stage of the trial. Additionally, the court needed to assess whether permitting the amendments would cause significant prejudice to the defendant, Northwood, thereby affecting the fairness of the trial.

In delivering the judgment, the court held that the application to amend the pleadings was not permissible under the circumstances. The court determined that the proposed amendments were not sufficiently arguable on the facts and law presented. Furthermore, the court concluded that permitting the amendments at such a late stage would cause substantial prejudice to the defendant, Northwood, as it would disrupt the fairness and efficiency of the trial process. Consequently, the application to amend the pleadings was dismissed.

The court ordered that the trial proceed without the proposed amendments, ensuring that the fairness and integrity of the judicial process were maintained. The final orders reflected the court's decision to disallow the amendment to the pleadings and to continue with the trial based on the existing pleadings.

Orders