Wolfert v Van Den Biggelaar
[2008] TASSC 44
•26 August 2008
[2008] TASSC 44
CITATION: Wolfert v Van Den Biggelaar [2008] TASSC 44
PARTIES: WOLFERT, Johan Jacobus
WOLFERT, Natalie
v
VAN DEN BIGGELAAR, Anton
VAN DEN BIGGELAAR, Anita
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO: 24/2007
DELIVERED ON: 26 August 2008
DELIVERED AT: Hobart
HEARING DATES: 12 May and 18 June 2008
JUDGMENT OF: Holt AsJ
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Amendments – Defence – Discretion – Withdrawal of admissions.
Aust Dig Procedure [276]
REPRESENTATION:
Counsel:
Plaintiffs: C J Gunson
1st Defendant: B R McTaggart
Solicitors:
Plaintiffs: Temple-Smith Partners
1st Defendant: McCulloch & Associates
Judgment Number: [2008] TASSC 44
Number of paragraphs: 34
Serial No 44/2008
File No 24/2007
JOHAN JACOBUS WOLFERT and NATALIE WOLFERT v
ANTON VAN DEN BIGGELAAR and ANITA VAN DEN BIGGELAAR
REASONS FOR JUDGMENT HOLT AsJ
26 August 2008
An application for leave to amend the defence
The defendants have appointed new solicitors and an application has been made for an order granting leave to the first defendant to amend his defence. To grant the application will be to give permission for the withdrawal of some admissions.
The second defendant was not involved in the application. The plaintiffs are no longer proceeding against her. Through her solicitor the Court has been advised that she has become a bankrupt. Accordingly, the proposed amended defence is that of the first defendant only.
When the hearing commenced evidence in support of the application was presented in the form of an affidavit from the first defendant’s new solicitor rather than from the first defendant himself. During the course of cross-examination the solicitor said that there was nothing in his file note for 17 November 2007 recording his instructions from the first defendant which concerned matters additional to those relied upon for his affidavit. He was called upon by counsel for the plaintiffs to produce the file note. He declined to do so and stepped down from the witness box. Pursuant to r463 the result of this was that his affidavit could not be used in evidence. An affidavit sworn by the first defendant was then filed and the hearing resumed at which time the first defendant was cross-examined. The matter was then adjourned so that written submissions could be filed. The last of the submissions was received on 25 July. The plaintiffs in their submissions and without objection referred to the affidavit of the first defendant’s solicitor and so I infer that the parties were content for me to have regard to it notwithstanding r463.
The existing pleadings
The statement of claim, which is dated 5 April 2007, is as follows. The plaintiffs are vegetable farmers and the defendants traded in partnership. By an oral contract made in the course of a conversation between the first defendant and the plaintiffs on 7 October 2004 the defendants agreed to design, construct and supply to the plaintiffs “a mobile platform on which the plaintiffs planned to place a vegetable harvester”. The contract was on terms that the platform would be constructed for a guaranteed maximum price of $100,000 and would be ready for delivery by mid-May 2005 being “in advance of the beginning of the next sprout harvest on the plaintiffs’ property”. It was a term that the platform “would include a ‘sizer’ so as to separate the larger sprouts with a diameter of more than 38 mm, from the other harvested sprouts”. The plaintiffs made progress payments, but the platform was not ready in time for the May harvest. It was agreed that the defendants would construct a temporary platform. It is alleged that there were terms of the agreement that the temporary platform would be fit for use in steep and wet conditions and would include a sizer. The temporary platform was constructed, but it was not reasonably fit for the purpose in that, amongst other things, it became easily bogged so that the vegetables had to be cut and carted to it rather than it being brought to the vegetables and it did not contain a sizer. On 17 September 2005 there was an agreement “partly oral, partly in writing and partly implied” to amend the principal agreement by substituting for the original terms concerning price and completion date terms that in addition to the progress payments already made the plaintiffs would pay the sum of $20,066 excluding GST and the platform would be ready for delivery by 10 March 2006. The platform was not delivered by the agreed date nor following requests made thereafter. The plaintiffs say that the contract is now at an end. They want the return of the money which they have already paid to the defendants being in excess of $160,000 plus damages.
By their defence dated 15 May 2007 the defendants have admitted that in October 2004 they agreed to build the platform for a guaranteed maximum price of $100,000, but dispute that it was a term that it would be ready for delivery in May 2005. They say that it was a term that the platform would be built from a second hand excavator. It is alleged that the agreement was varied in December 2004 with the new arrangement being that the platform would be built “from scratch without using a second hand excavator” and with no guaranteed maximum price. They admit that in May 2005 they agreed to build a temporary platform. It is disputed that there was a fitness for purpose condition. It is admitted that the platform became easily bogged so that the use of it during the 2005 harvest had to be modified so that the platform was not moved and the vegetables were cut and carted to it. It is admitted that the temporary platform did not include a sizer. The defendants admit that the agreement was varied in September 2005 by substituting 10 March 2006 as the new delivery date. They deny that they agreed to complete the work for a further sum of $20,066. The defendants say that the plaintiffs directed them to postpone work and did not authorise recommencement until January 2006. They say that the recommencement instruction was accompanied by an instruction that the sizer was to be constructed by another firm so that the defendants could not achieve completion until the sizer was delivered ready for fitting to the hydraulic system being manufactured by the defendants. Accordingly, it is denied that the failure to deliver the platform by 10 March 2006 was in breach of the agreement.
The proposed amended defence
The first defendant now wishes to withdraw the admission that there was a contract in October 2004. It is proposed to be alleged that there was a December 2004 contract when, as stated in the existing defence, it was agreed that the platform would be built with no agreed completion date, and with no guaranteed maximum price. As before the first defendant admits an agreement in May 2005 to construct a temporary platform, but now wants to specify that the agreement was “to construct a trailer from the plaintiffs’ old potato harvester and thereon construct a temporary mobile platform”. The admission previously made that the temporary platform became easily bogged so that it could not be moved and the vegetables had to be cut and carted to it, is proposed to be withdrawn as is the admission that the temporary platform did not contain a sizer. The first defendant wishes to withdraw the admission that in September 2005 a delivery date of 10 March 2006 was agreed. The allegation that the defendants were instructed to cease work and were not told to resume construction until January 2006 is maintained. It is alleged that thereafter there was delay in delivery of the sizer. The defendants say that if there was an agreement as to the completion date time was set at large by the conduct of the plaintiffs. The proposed defence includes a new plea that the plaintiffs are estopped by conduct from relying on the March completion date and a new plea that in March 2006 the plaintiffs issued a second instruction that work on the platform was to cease. The first defendant now wishes to bring a counterclaim. He says that the reasonable cost of labour and materials to the date of the March instruction to cease work exceeds the sum already paid by the plaintiffs in an amount of $41,800 and that the plaintiffs are accordingly indebted to him for this amount.
The evidence
The only instructions for the defence to which the first defendant refers are written instructions issued to his former solicitors shortly prior to the delivery of the statement of claim. They were given in response to a letter from the plaintiffs’ solicitors dated 2 April 2007. The letter in par3 said:
“In return for the manufacture and delivery of the mobile platform my clients promised to pay Mr & Mrs Van Den Biggelaar no more than $100,000.00.”
Relevantly the instructions included:
hAn admission that there was an original agreement in October 2004 and the first defendant’s statement: “I refer to the sum of $100,000.00 and say that this was under the original agreement …”.
hAn admission that the temporary platform became bogged, but with the explanation that it was: “as a result of very heavy rainfall in the days prior to the harvesting which turned his paddock into a mud pool”.
hA statement in terms: “When I spoke to Mr Wolfert by telephone and we agreed to build the temporary mobile unit I advised him that it did not contain a ‘sizer’. His comment was that this would not be a problem because his wife had a real sharp eye in making decisions as to whether the brussel sprouts were the right size or not and if, in her opinion, they were too big she would physically remove them.”
hAn admission that the defendants issued to the plaintiffs a letter dated 17 September 2005 stating that the work would be completed by 10 March 2006 at a further cost of $20,066 exclusive of GST.
The instructions say that at the time the letter of 17 September was written the plaintiffs asked the defendants to temporarily cease work, but they do not say or contain enough information to indicate that the defendants disputed that the completion date specified being 10 March 2006 was intended to be binding.
Although in part the instructions are confusing I do not regard any of the admissions or any part of the defence as being inconsistent with them. Accordingly, I do not need to deal with a submission made by counsel for the first defendant that the former solicitors misapprehended the instructions for the defence. I find that there was no misapprehension.
The first defendant’s affidavit does not identify any mistake in his instructions to his former solicitors. He repeats the admission that there was a contract in October 2004. Other than annexing a copy of the instructions issued to his solicitors for the preparation of the defence he makes no mention of the admissions now sought to be withdrawn that the temporary platform became easily bogged and that it did not contain a sizer. He says that the letter of 17 September 2005 was written at the request of the first plaintiff to assist the plaintiffs in obtaining finance and that there was a contemporaneous request for him to cease work until the plaintiffs received payment “from the next season’s harvest”. However, he does not say when the next season’s harvest was to occur and he makes no mention of whether the specified delivery date of 10 March 2006 was inserted taking into account the period during which it was agreed that work would not be undertaken.
As to how it came about that a defence was delivered which contained admissions which the first defendant now seeks to withdraw his affidavit says at pars8, 9, 10 and 11:
“8 Prior to the completion of my defence dated 15 May 2007 I instructed my former solicitors Archer Bushby in accordance with the previous paragraphs hereof. Annexed hereto and marked ‘C’ is a copy of my letter to Archer Bushby of 8 April 2007 with my attached response to a letter from Temple-Smith Partners dated 2 April 2007.
9 I do not believe that I saw the defence in this action until I went through it with my now solicitor Mr John Munro on the 16th of November 2007. Having done so he advised me that the defence needed to be amended. I instructed him to proceed as he needed to.
10 Mr Munro arranged for me to see a barrister, Mr Bruce McTaggart. Mr Munro and I conferred with Mr McTaggart at his chambers on the 18th of February 2008. I provided him with instructions to prepare the amended defence.
11 I have considered the amended defence and as far as I can tell it reflects my defence to the plaintiffs claim.”
Paragraph 9 is in conflict with what his new solicitor said in his affidavit at par2(b), namely:
“On the basis of the instructions of the first defendant to me I say as follows:
…(b)The first defendant received a copy of that defence on or about 15th May 2007. He did not raise any issue about that defence at that time with his former solicitors as he assumed they knew what they were doing. He did not check the defence in any detail for the same reason. He did not realize the defence did not accurately reflect his instructions.”
The law
Rule 427(2), provides that “the pleadings may be amended as necessary for the purpose of determining the real questions in controversy between the parties”.
In Clough v Frog (1974) 48 ALJR 481 at 482, the Court said:
“By O 32, r 1, the judge was empowered ‘at any stage of the proceedings’ to allow either party to amend his pleadings ‘in such manner, and on such terms, as are just, and all such amendments shall be made as are necessary for the purpose of determining the real questions in controversy between the parties’.
The principle according to which this power is to be exercised was stated by Bowen LJ in Cropper v Smith (1884) 26 Ch D 700, at pp710-11: ‘… the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases …. I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. … as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.”
The general rule that amendment applications should ordinarily be granted was stated in the following terms by Dawson J in Commonwealth v Verwayen (1990) 170 CLR 394 at 456:
“The rules of court have always provided that leave to amend pleadings may be given for the purpose of determining the real question in controversy between the parties … and an amendment should ordinarily be allowed if any harm arising from so doing can be compensated for by the imposition of terms upon the party asking for the amendment. … The usual terms which are imposed are an order for costs or an adjournment. In granting leave to amend, a court is concerned with the raising of issues and not with their merits. Of course, an amendment which is futile because it is obviously bad in law will not be allowed. But it is no ground for refusing an amendment that it raises a claim or defence which ought not to succeed. That will be an issue upon trial. An amendment may, however, be refused because it is made at such a late stage that neither costs nor an adjournment can compensate the other side for the failure to raise the issue at an earlier stage.”
Where, however, an admission made in a pleading is sought to be withdrawn by amendment to the pleading the governing principles are those which apply to the withdrawal of admissions generally. In Giuriato v Attorney-General (1997) 6 Tas R 344, Zeeman J said at 348:
“A party may make an admission for the purpose of a proceeding in various ways. In particular the admission may be contained in a pleading, may be in response to a notice to admit facts or may be made by formal admission before the Court. Where a party seeks to withdraw an admission it invokes a discretion. I do not consider that different principles ought to apply to the exercise of that discretion by reference to the method adopted to make the admission. In particular, I consider that the same principles should govern an application to amend a pleading by withdrawing an admission under O31, r1, and an application to withdraw an admission made in response to a notice to admit facts made under O34, r4(3). The court may decline to exercise the discretion whenever the interests of justice so require (Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738).”
As Gzell J said in Khouri v National Australia Bank Ltd (2007) NSWSC 987, the leading authority on withdrawal of an admission is the decision of Santow J of the Supreme Court of New South Wales in Drabsch v Switzerland General Insurance Co Ltd unreported, 16 October 1996. The case is referred to by the Full Court of the Federal Court in Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309. I refer to Jeans because it contains a convenient summary of the principles to be applied in dealing with an application to withdraw an admission. There the Court said at pars17-20:
“As his Honour noted, it was common ground that the relevant principles to be applied on the motion for leave were those dealing with an application to withdrawn an admission. His Honour summarised these principles. There was no suggestion on the appeal that his Honour applied the wrong principles or summarised them inaccurately. His Honour correctly rejected the approach taken in England in H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 where it was suggested that, except in cases which gave rise to an estoppel, an admission might be withdrawn, at least if the other party was not prejudiced otherwise than in a way that might be cured by a costs order. Rather his Honour accepted the view advanced by Rogers CJ in Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 that a party should not be permitted easily to withdraw an admission as otherwise the making of an admission might become meaningless. Nevertheless there was a countervailing policy, his Honour accepted, that a party not be discouraged from making admissions out of fear that once given they might not be withdrawn.
The true position was, his Honour said, that there was no principle that admissions might or might not be withdrawn. Rather the court had a broad discretion to weigh up all matters with the overall question being to ensure that there was a fair trial. His Honour accepted the principles stated by Santow J of the Supreme Court of New South Wales in Drabsch v Switzerland General Insurance Co Ltd (unreported, 16 October 1996) as follows:
‘1Where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted …
2The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guidelines being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded …
3Where a court is satisfied that admissions have been made after consideration and advice such as from the parties’ expert and after full opportunity to consider its case and whether the admission should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn …
4It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission …
5Following Cohen v McWilliam & Anor (1995) 38 NSWLR 476, a court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with costs orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited on the other party.’
His Honour considered, also, the effect of the decision of the High Court in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 which, contrary to the view of Rogers CJ in Coopers Brewery, rejected an emphasis upon case management as a ground for refusing an application to amend a defence, which application would lead to the vacating of a hearing date and an adjournment of the proceedings, and instead made it clear that the ultimate aim of the court was the attainment of justice. Case management should not be allowed to prevail, their Honours said, over the injustice of shutting the applicants out of raising an arguable defence: (see at at 155).
Consistently with that judgment his Honour observed that, while case management was not an irrelevant consideration, it was neither decisive nor paramount in determining whether leave should be given to withdraw the admission. However, his Honour pointed out that the facts before his Honour were distinguishable from those in JL Holdings where the application was made six months before the trial date and not after the hearing had actually commenced. Further, as his Honour observed, the admission sought to be withdrawn was on a factual issue within the knowledge of the person making the admission.”
The opposition to the application
At par4 of his written submissions counsel for the plaintiff says:
“In summary form, the application should be dismissed because:
(a)To grant the application would be an exercise in futility because the relevant provisions of the Partnership Act 1891 are such that the admissions made by the second defendant remain admissible against the partnership between the first and second defendants notwithstanding any amendments made to his defence by the first defendant.
(b)The first defendant has failed to demonstrate, based on solid and cogent evidence, why the admissions were made in the first place, or how they came to be made.
(c)The first defendant has failed to demonstrate, based on solid and cogent evidence, why the admissions now sought to be withdrawn are erroneous or contrary to the facts.
(d)It is not in the interests of justice to grant the application given the unsatisfactory nature of the first defendant’s evidence and irreconcilable differences between: (i) his affidavit, (ii) his evidence; and (iii) Mr Munro’s affidavit.”
Should leave to amend be granted?
I reject the plaintiffs’ submission that the granting of leave to withdraw the admissions would be futile. Counsel for the plaintiffs placed reliance on the Partnership Act 1891, ss10 and 11, which in general terms and subject to some conditions provide that a partner is bound by the acts of his partners. But, s20 is specific about admissions and it does not, unlike ss10 and 11, say that the effect of an admission by one partner is to bind all partners. Section 20 is as follows:
“Admissions and representations of partners
An admission or representation made by any partner concerning the partnership affairs, and in the ordinary course of its business, is evidence against the firm. “
Whether such an admission of one partner is conclusive against the rest will depend on whether the others are estopped from departing from it.
A person may be estopped from acting in a way which is contrary to an admission or representation made by him or by his partner if certain conditions are fulfilled. One of the conditions is that the person to whom the representation was made would suffer detriment if the opposite party were afterwards allowed to depart from what had been said. In Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR, Dixon J as he then was said at 674:
“The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations. This is, of course, a very general statement. But it is the basis of the rules governing estoppel. Those rules work out the more precise grounds upon which the law holds a party disentitled to depart from an assumption in the assertion of rights against another. One condition appears always to be indispensable. That other must have so acted or abstained from acting upon the footing of the state of affairs assumed that he would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption. In stating this essential condition, particularly where the estoppel flows from representation, it is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it.”
The effect of the grant of leave to withdraw an admission must inevitably be that the party to whom leave has been granted may present evidence of facts contrary to the admission and argue that the Court should make findings accordingly. If an estoppel is to be claimed it must necessarily be claimed before leave is given. Here no estoppel has been asserted.
The fact that the original admissions were made is evidence against the first defendant, but is not necessarily conclusive. The grant of leave to withdraw the admissions would not be rendered an exercise in futility by the provisions of the Partnership Act.
The balance of the opposition to the grant of leave is based principally on complaints about the quality of the evidence presented in support of the application. In particular, it is said that there is not solid and cogent evidence showing error and explaining how the admissions came to be made in the first place. It is also said that the evidence is incomplete and that the first defendant’s evidence is unsatisfactory and contradictory and “quite simply lacks credulity”.
There are in substance four admissions which the first defendant seeks to withdraw. Namely, that:
h there was a contract in October 2004;
h in September 2005 a completion date of 10 March 2006 was agreed;
hthe temporary platform became easily bogged; and
hthe temporary platform did not contain a sizer.
I will deal with the contract matters first. There is no departure from the underlying facts contained in the original instructions issued by the first defendant to his former solicitors prior to the delivery of the defence. The change of position is confined to the characterisation of these facts. It comes about with the change in legal representation. The evidence of the first defendant is not significant in the consideration. Accordingly, on the contract matters it is unnecessary for me to deal with the submission that the first defendant’s evidence lacks credulity. It is undesirable that I should make an assessment of credibility when the trial is yet to occur.
The withdrawal of the admission that the conversation in October 2004 resulted in a contract would appear to have no material impact on the plaintiffs’ preparation for the trial or their ability to advance their case. The conversation would have to be the subject of evidence regardless, as the defendants in the existing defence say that the agreement was for a platform built from a second hand excavator and not for a platform built from scratch. The withdrawal is not sought to be made at such a late stage that it would cause delay. The action is yet to be set down for trial. There is nothing to suggest that the plaintiffs have changed their position in reliance upon the admission. It may be that after the evidence as to the October 2004 conversation is heard the appropriate conclusion is that there was no contract because of matters such as lack of intent to create legal relations, lack of certainty or lack of completeness. It may be that the appropriate finding is that the defendants’ October 2004 promise was conditional upon a suitable second hand excavator being found and that a contract did not come into existence because that event did not occur. A fair trial can still occur if the admission is withdrawn. There would be injustice to the first defendant if despite the fact that there was no contract he was to be bound by his admission. There will be no injustice to the plaintiffs if leave to withdraw the admission is given. The question is whether it is in the interests of justice that leave to withdraw the admission be given. Acknowledging that leave to withdraw an admission should not be given lightly and guided by the observations in the cases to which I have referred I have decided that the first defendant should have a favourable exercise of the discretion. He will be given permission to withdraw the admission that there was a contract in October 2004.
My conclusion is the same in respect of the proposal to withdraw the admission that a completion date of 10 March 2006 was agreed. It is claimed in the existing defence that the plaintiffs instructed the defendants to cease work and did not authorise a resumption of construction until January 2006. Accordingly, there will need to be evidence of the conversations between the parties which occurred around the time it is alleged that the March completion date was agreed in any event. As I have said there is no departure from the underlying facts and so the withdrawal would not appear to have the potential to result in any significant increase in pre-trial activity or cost. There is nothing to suggest that the plaintiffs have changed their position in reliance upon the admission. It may be that after this evidence is heard the appropriate conclusion is that the parties did not intend that the defendants would be bound by the completion date of 10 March 2006 specified in the defendants’ letter to the plaintiffs dated 17 September 2005. A fair trial can still occur if the admission is withdrawn. There would be injustice to the first defendant if when the evidence is heard it is apparent that the March 2006 completion date was not intended to be binding, but the Court has to proceed contrary to the fact because of the admission. There will be no injustice to the plaintiffs if leave to withdraw the admission is given. The first defendant will be given permission to withdraw the admission that a March 2006 completion date was agreed.
Next there are the questions of whether or not I should allow the first defendant to withdraw the admissions that the temporary platform became easily bogged and did not contain a sizer as pleaded in par13(ii) and (iii) of the statement of claim. These admissions, unlike the contract matters, are concerned purely with a questions of fact. Again, I consider it to be unnecessary and undesirable for me to deal with the first defendant’s credibility. His instructions to his solicitors prior to the delivery of the defence were, as I have said, consistent with these admissions. There is no evidence to suggest that these admissions are contrary to fact and no reason has been advanced as to why the plaintiffs should be put to proof. Leave to withdraw these admissions will not be given.
The proposed amendments to the defence go beyond the withdrawal of admissions. For example, the new document includes a counterclaim. The plaintiffs’ submissions opposing these amendments are as follows:
“… amendments should not, it is submitted, be permitted in circumstances in which it is apparent on the evidence adduced on the hearing for leave to amend to the effect that:
(a)the amending party, in this case the first defendant, has not been shown to have taken any active interest in the litigation;
(b)the amending party seeks to amend the pleading after receiving advice from former solicitors that he should accept a settlement offer made by the plaintiffs, but does not wish to do so; and
(c)the amendment would appear to be designed to frustrate the plaintiffs’ prosecution of the action.
…
The court is … entitled to take into account general prejudice that is likely to arise as a consequence of the first defendant being granted leave to amend his defence. Such prejudice includes the requirement for more extensive pre-trial steps (eg more extensive interrogation and discovery); a longer trial; and additional costs that are likely to be incurred (but are unascertainable at the present). ”
I accept the factual correctness of propositions (a) and (b), but I do not think that these features are sufficient to justify disallowing the amendments.
The plaintiffs’ written submissions elaborate on proposition (c) where it is said that it would:
“be open to the Court to find that the first defendant would appear to have instructed his solicitors and counsel to take every point and withdraw every admission.”
The proposed defence does not withdraw every admission. The plaintiffs have referred to no evidence which might support the finding contended for. I am not persuaded that the amendments have been proposed for the purpose of frustrating the plaintiffs’ prosecution of the action.
There is the claim that allowing the amendments would cause some general prejudice. It can be said that often amendments will give rise to a need to repeat some pre-trial steps or occasion the undertaking of steps that otherwise would not have been required. Sometimes a trial on the revised issues will be longer than a trial on the original issues. There is nothing here however to cause these concerns to loom so large as to justify withholding a favourable exercise of the discretion.
The amendments additional to the withdrawal of admissions will be allowed.
Disposition
The first defendant will be given leave to amend his defence, but not so as to withdraw the admission of the facts asserted in the statement of claim pars13(ii) and (iii), namely, that the temporary platform became easily bogged and did not include a sizer. There will be an order that the first defendant have leave to amend his defence in terms of the document attached to the first defendant’s written submissions dated 7 July 2008, but with par16 to be in the same terms as par14 of the original defence.
0
4
0