District Court New South Wales Medium Neutral Citation: Lumina BPO Pty Limited v ELB Pty Ltd [2020] NSWDC 710 Hearing dates: 26 August 2020 Date of orders: 26 August 2020 Decision date: 26 August 2020 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: Application for leave to amend defence is refused. Catchwords: CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment Category: Procedural and other rulings Parties: Lumina BPO Pty Limited (plaintiff) ELB Pty Ltd (defendant) Representation: Counsel: Mr D Neggo (plaintiff) Mr M T Keene (defendant) Solicitors: Watson Mangioni Lawyers Pty Ltd (plaintiff) John de Mestre & Co Solicitors Pty Ltd (defendant) File Number(s): 2019/228108 Publication restriction: None Judgment 1. The defendant, ELB Pty Ltd, during final submissions seeks leave to file a Further Amended Defence adding four subparagraphs to paragraph 1 to the plaintiff's claim for payment of invoices. The additions read: "(o) Says further, the completion of the Tasks is an entire obligation, which was indivisible and not severable from the obligation of the Defendant to pay any moneys under the agreement to the Plaintiff. (p) Says in the further alternative, the obligation of the Defendant to pay the Plaintiff was solely dependent on the tasks under the agreement all being completed by the Plaintiff. (q) in the premises of subparagraph[s] (f) (g) (o) and (p) above, the Defendant is not liable to pay any monies under the Agreement to the plaintiff. (r) Says that any monies paid by the Defendant to the Plaintiff was paid on account only." 1. If it were the case that this amendment did not raise the possibility of further evidence, but was solely a question of construction of the written contracts, I would be minded to allow it. However, here the defendant has conceded the possibility of evidence being called by the plaintiff to meet the new defence. 2. The plaintiff seeks to raise two answers in the event that the defendant is given leave: conventional estoppel and waiver. 3. As to the estoppel, it is uncertain whether the plaintiff suffered detriment by reason of the defendant's conduct in paying the first invoice. The plaintiff says it is out-of-pocket in these proceedings for approximately $150,000 of unpaid work. But had the defendant not paid the first invoice and the plaintiff ceased work, the plaintiff may well have been out-of-pocket by a similar amount. However, the plaintiff should not be denied the opportunity to present its case merely because its success is not certain. It is too early to know the extent of the plaintiff's loss had it ceased work after the first invoice, but there remains a real prospect that its loss could have been avoided. 4. The claim of waiver by the payment of the first invoice appears to have substance, yet it too would require further evidence to be made out. 5. The plaintiff's claim is for unpaid services pursuant to a letter of engagement. The amount claimed is at the lower end of the jurisdiction of this Court, and if the matter is prolonged by reason of further evidence and adjournments, there is a real prospect of the costs becoming disproportionate to the claim. 6. Further, although I indicated the possible need for the amendment to raise the point the defendant seeks to argue, the defendant does not accept this and continues to maintain that the existing pleading is sufficient and that the amendment is made out of an abundance of caution. The fact that the amendment may be unnecessary so far as the defendant is concerned is not a point in its favour. 7. The matter is raised very late. The defendant, after the hearing date was set, has previously abandoned its original defence entirely and obtained leave to file a new defence. Now it seeks to plead a point which it says is central to its case. Whether that pleading is necessary or not, and whether the point is ultimately crucial for the defendant or not, I think that the time has passed for an amendment of this magnitude in a case where, to grant the amendment would compel the Court either to deprive the plaintiff of evidence to answer the new point, or to further prolong the proceedings by allowing parties to go back into evidence which would likely require adjourning the proceedings. 8. The plaintiff in submissions also denied the utility of the amendment, but as there are other good reasons to refuse the application, I need not deal with that matter. Leave is refused. ********** 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: 17 November 2020