Supreme Court New South Wales Medium Neutral Citation: Cenric Group Pty Ltd v AIG Australia Ltd [2020] NSWSC 624 Hearing dates: On the papers; submissions 14, 15, 21 and 25 May 2020 Date of orders: 25 May 2020 Decision date: 25 May 2020 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Defendant granted leave to amend its Commercial List Response Catchwords: PRACTICE AND PROCEDURE – application to amend Commercial List Response – hearing date in July - whether plaintiff able to meet amendments – whether adequate justification for proposed amendment explanation for delay in bringing application Cases Cited: Cenric Group Pty Ltd v Bundanoon Sandstone Pty Ltd (No 2) [2018] NSWSC 1878 Cenric Group v TWT Property Group [2018] NSWSC 1570 Elite Plant Hire Pty Ltd (in Liq) v Mecon Winsure Insurance Group Pty Ltd [2020] NSWSC 441 Karl Suleman Enterprizes Pty Ltd (In Liq) v Pham [2013] NSWCA 93 Category: Procedural and other rulings Parties: Cenric Group Pty Ltd (Plaintiff/Respondent) AIG Australia Ltd (Defendant/Applicant) Representation: Counsel: A C Casselden SC with M A Robertson (Plaintiff/Respondent) J E Maconachie QC and P Mann (Defendant/Applicant) Solicitors: MDW Law (Plaintiff) McMahons Lawyers (Defendant) File Number(s): 2019/250526 Judgment 1. The plaintiff, Cenric Group Pty Ltd, seeks indemnity from the defendant insurer, AIG Australia Ltd, under a policy of insurance in respect of the loss or damage to a large number sandstone blocks. Cenric alleges the blocks were deliberately destroyed in October or November 2018 following delivery by McDougall J of his Honour's judgment in Cenric Group v TWT Property Group. [1] The alleged deliberate destruction of the sandstone blocks was also the subject of an application for a freezing order before me: Cenric Group Pty Ltd v Bundanoon Sandstone Pty Ltd (No 2). [2] 2. Cenric commenced these proceedings on 12 August 2019. 3. On 29 November 2019 Hammerschlag J ordered that AIG serve its lay evidence by 13 December 2019 and its expert evidence by 31 January 2020. His Honour also ordered that "evidence not served in accordance with this direction may not be relied on without leave". 4. On 7 February 2020, Hammerschlag J listed the proceedings for a four-day hearing commencing 6 July 2020. 5. By amended notice of motion filed on 12 May 2020 AIG now seeks leave to amend its Commercial List Response. AIG also seeks to rely upon two affidavits served otherwise than in accordance with Hammerschlag J's order of 29 November 2019; an affidavit of Mr Simon Marr of 4 May 2020, and an affidavit of Ms Stephanie Doherty sworn 6 May 2020. 6. The proposed Second Further Amended Commercial List Response is the fourth iteration of AIG's Response. 7. In correspondence, Cenric's solicitors have complained to AIG's solicitors about the adequacy of the earlier iterations of AIG's response. 8. Mr Maconachie QC, who now appears with Mr Mann for AIG, has, in his written submissions, acknowledged the inadequacy of AIG's earlier Responses. 9. He submitted: "The current List response is deficient. That is why [AIG] has sought leave to amend. The nature of the deficiency is one of form rather than substance. Matters clearly articulated in part B of the List Response were not set out as contentions in Part C". 1. Mr Maconachie was referring to the fact that, in the existing Response, AIG has sought to raise, under the heading "Issues Likely to Arise", the matters of substance on which it relied in order to contend that the policy did not respond to Cenric Group's claim; but without those matters being set out as contentions in the usual way. 2. Thus, the proposed amendments to the Response seek to address the shortcomings of the kind that I identified in Elite Plant Hire Pty Ltd (in Liq) v Mecon Winsure Insurance Group Pty Ltd. [3] 3. However, in this case, Mr Maconachie has recognised the shortcomings of the current pleadings. Thus he submitted: "The defendant submits that it should be allowed to properly particularise its case in defence by removing the rolled up and non-exclusive allegations that appear in the current List Response…Whilst the plaintiff has not complained specifically about these non-exclusive allegations, the defendant recognises that it is an unacceptable pleading practice and seeks to remedy it with greater and more specific particularity in the proposed List Response." 1. Mr Maconachie continued: "Further in providing greater particularisation, it has emerged that the defendant did not plead some of the non-disclosures as misrepresentations and now seeks to remedy this. Also, the important facts of the principal of the relevant project seeking to remove the plaintiff from the head contract of the project in March 2018 and the subcontractor terminating its contract with the plaintiff also in March 2018, both prior to renewal of the Policy and the circumstances that led to the claim are now pleaded in the proposed List Response." 1. Mr Maconachie attached to his submissions a schedule that shows that the proposed Response, while considerably longer than its predecessors, in substance restates with greater specificity and as contentions, matters already alleged, albeit in a rolled up form and as the "issues likely to arise". 2. As to the further affidavits relied upon, Mr Maconachie submitted: "A change in junior counsel and the preparation of the matter for hearing resulted in these matters and the concomitant need for the two further affidavits emerging." 1. As Cenric has pointed out in its submissions, it is unsatisfactory that the need for AIG to take these steps has only been recognised at this relatively late stage. 2. Late amendments such as this require justification and explanation. [4] 3. I am satisfied that the amendments are justified. The amendment will cure a deficiency in the pleading. [5] 4. As Cenric has submitted, such explanation as had been offered for the delay is to the effect that counsel previously briefed in the matter "did not do an adequate job". However, sometimes it is better to be right in the end, than wrong all along; especially where no prejudice is pointed to. 5. In that regard, so far as concerns the further evidence that AIG seeks to adduce, in its preliminary submissions, Cenric pointed to a letter dated 25 October 2018 that is attached to Mr Marr's affidavit. In that letter AIG evidently stated that any questions in the proposal form left blank would be taken as conveying the answer "no". 6. Cenric's solicitor sought an extension of time to make further submissions and adduce further evidence in relation to AIG's application to amend because it needed "to determine whether the 25 October letter was brought to its attention". I granted Cenric the extension it sought. 7. In submissions provided thereafter, no mention was made of the 25 October 2018 letter. I infer from that that Cenric is able to deal with that letter. 8. In those further submissions Cenric complained that proposed Amended Response poses "new legal and factual issues that were not previously outlined in its broadly framed and unparticularised 'Issues Likely to Arise' section of all the previously pleaded versions of the Commercial List Responses". 9. I find that submission hard to reconcile with Mr Maconachie's schedule [6] that, as I have said, appears to show that in substance, nothing new of substance is raised by the proposed amendment. 10. I do not find it necessary to express any final conclusion about that matter. That is because it was not suggested in Cenric's further submissions that Cenric cannot meet the case now proposed to be articulated in the proposed amended Response. 11. Rather, it was submitted on behalf of Cenric: "If the Defendant had properly articulated and particularised its List Response in September 2019 then it is not unreasonable to assume that the Plaintiff would have investigated those matters and filed a detailed Reply to the allegations in the usual way and responded to the specific case that was being put against it. The Plaintiff is now expected to address each of the new pleadings and to prepare for trial prior to 6 July 2020. This is not a case where the Defendant could not have pleaded its case and put on its evidence prior to now. The matters now sought to be relied upon by the Defendant are not new and if proper enquiry had been made in 2019 they could have been adequately notified to the Plaintiff." 1. That carefully worded paragraph falls far short of a submission that Cenric cannot now meet the case that AIG proposes now to articulate. 2. In those circumstances I: 1. Grant leave to the defendant to file a Second Further Amended Commercial List Response in the form marked "B" sent to my associate by email at 3.43pm on 20 May 2020. 2. Grant leave to the defendant to rely on the affidavits of Simon Brett Marr made 4 May 2020 and Stephanie Doherty made 6 May 2020. 3. Order that the defendant pay the plaintiff's costs thrown away by reason of the amendment to its Response and by reason of the late service of the affidavits of Mr Marr and Ms Doherty. 4. Order that the costs of the defendant's amended notice of motion of 12 May 2020 be the plaintiff's costs in the cause. ********** Endnotes 1. [2018] NSWSC 1570. 2. [2018] NSWSC 1878. 3. [2020] NSWSC 441 at [17]-[22]. 4. Karl Suleman Enterprizes Pty Ltd (In Liq) v Pham [2013] NSWCA 93 at [22] (Meagher and Barrett JJA). 5. See [8] to [14] above. 6. See [14] above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2020