O’Donnell v Goway Travel Pty Ltd [2020] NSWSC 682

Supreme Court New South Wales

Medium Neutral Citation: O'Donnell v Goway Travel Pty Ltd [2020] NSWSC 682 Hearing dates: On the papers; submissions 29 May, 1 and 2 June 2020 Date of orders: 02 June 2020 Decision date: 02 June 2020 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Defendant granted limited leave to amend its response; leave to administer interrogatories refused Catchwords: PRACTICE AND PROCEDURE – late application to amend Response

PRACTICE AND PROCEDURE – leave sought to administer interrogatories Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: John O'Donnell (Plaintiff) Goway Travel Pty Ltd (Defendant) Representation: Counsel: A C Casselden SC with G P Gee (Plaintiff) L V Gyles SC with A E Maroya and S Scott (Defendant)

Solicitors: Marque Lawyers (Plaintiff) Richard Glover Law Practice (Defendant) File Number(s): 2018/282794

ANNEXURE A (764732, pdf) Judgment 1. These proceedings are listed for hearing for five days commencing on 15 June 2020. 2. On 29 May 2020, the defendant, Goway Travel Pty Ltd, gave notice to the plaintiff, Mr O'Donnell, of its proposal to amend its Commercial List Response and to administer interrogatories. 3. The proposed amendments 4. The proposed amendments introduce new contractual defences. 5. Those further defences are proposed in new paragraphs C3(e), C3(f) and C3(g) on the one hand, and new paragraph C15 on the other. 6. Paragraphs C3(e) and (g) seek to introduce a defence that if there were contracts between Mr O'Donnell and Goway: 1. it was an implied term of those contracts that Goway would only be obliged to redeem the travel vouchers in question if it were able to obtain "back to back prices" with airlines and hotels no greater than the price of the travel vouchers; and 2. any contract would be frustrated if Goway could not obtain such "back to back" arrangements. 1. Paragraph C3(f) pleads an implied obligation of good faith on the part of Mr O'Donnell and an allegation that Mr O'Donnell would be in breach of that obligation were he to enforce his asserted contractual rights "where he knew" a stated matter. 2. The claim introduced in paragraph C15(d) is that any agreement between Mr O'Donnell and Goway is void and unenforceable by reason of Mr O'Donnell having taken "unconscientious advantage" of Goway or on the basis of Mr O'Donnell becoming "unjustly enriched" by enforcing the contract. 3. In relation to each of these matters, it was submitted on behalf of Mr O'Donnell that, to test the defences, discovery and perhaps interrogatories would be necessary and that the necessary steps could not be taken prior to the hearing date. 4. Thus, it was submitted, allowance of these aspects of the amendments would have the result that the hearing date would need to be vacated. That would be especially unsatisfactory in this case as an earlier hearing date, last November, was vacated as a result of an earlier amendment made by Goway to its Response. 5. I do not see the force of this submission in relation to the proposed paragraph C 3(f). That paragraph seeks to raise the legal question of whether it was a term of the contract in question that each party would act in good faith and the question of Mr O'Donnell's knowledge about the matter specified. I cannot see what discovery or interrogatories could arise from those matters. Indeed, this paragraph was mentioned only in passing in Mr O'Donnell's first submissions on the amendment question. 6. However, I can see that Mr O'Donnell may wish to make further enquiries arising out the proposed paragraphs C 3(e) and (g) and C15. 7. Paragraphs C 3(e) and (g) raise the issue of whether Goway could, as a matter of fact, be able to obtain the "back to back prices" referred to. It would be reasonable for Mr O'Donnell to seek to explore that question at a factual level. 8. Paragraph 15 seeks to raise the very wide question of whether Mr O'Donnell took a "unconscientious advantage" of Goway such that he would "unjustly enriched" were he to enforce the claims now propounded. That claim may well involve a consideration of matters ranging beyond Mr O'Donnell's state of mind and may include such questions as to whether Goway was offering packages of the kind the subject of these proceedings to other customers and, if so, in what circumstances. I am not able, at this stage, to determine that such matters are incapable of relevance to the claim that Goway now seeks to propound. 9. Although Goway disputed that Mr O'Donnell's legal team would be obliged to take all the steps foreshadowed, I am not in a position to rule definitively on that question; and the larger point is that Mr O'Donnell should not be put in the position, at this very late stage, where he needs to seek, or at least contemplate seeking a further adjournment to meet an amended case. 10. The explanation offered for the late amendment is the very recent involvement of Goway's current senior counsel. I do not doubt that this is the reason for that amendment. That is, however, cold comfort to Mr O'Donnell. 11. In these circumstances, I will not permit the amendments proposed by paragraphs C(3) (e) and (g) and C15. 12. It also follows that the corresponding "Issues Likely to Arise" in Part B of the proposed Response will not be permitted and should be removed. 13. I propose to allow the other amendments proposed. Apart from paragraph C3(f), no objection is taken to them in terms and each of them appears to raise legal questions which arise from matters already agitated. 14. The interrogatories 15. As to the interrogatories, I am not satisfied that it is necessary for the purpose of Uniform Civil Procedure Rules 2005 (NSW) r 22.1(4) to order interrogatories at this late stage. 16. It is accepted on behalf of Goway that the questions proposed in the interrogatories could be asked in cross-examination. I do not think it would be fair to Mr O'Donnell to cause him to be diverted from the preparation of this case to answer interrogatories administered so late. 17. Orders 18. I make the following orders: 1. I grant leave to the defendant to amend its Commercial List Response in the form attached to these reasons and marked "A" save for paragraphs C(3)(e) and (3)(g), and C(15), and any corresponding provisions under the heading "Issues Likely to Arise". 2. I refuse to grant leave to the defendant to administer interrogatories to the plaintiff. 3. I order that the defendant pay the costs thrown away by the amendment to the Response and of the defendant's application to administer interrogatories.