District Court New South Wales Medium Neutral Citation: Nader v Prodom Pty Ltd as trustee for The Lovett Family Trust [2020] NSWDC 886 Hearing dates: 14 August 2020 Date of orders: 14 August 2020 Decision date: 14 August 2020 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Notice of motion granted. (2) Grant leave to the plaintiff to file the Amended Statement of Claim annexed to the affidavit of Peter Livers of 15 July 2020: (a) with a correction to the title of the parties so that the first plaintiff and second defendant are referred to as the plaintiff and defendant respectively; and (b) to permit, if the plaintiff is so minded, an additional paragraph pleading facts going to the alleged knowledge of the defendant as to the contents of the containers, such Amended Statement of Claim to be filed within 14 days. (3) Plaintiff pay the costs thrown away by the amendments and should include, to the extent it is not covered by my costs order of 18 June 2020, the costs of the earlier strike out motion of the defendant. (4) Costs of the motion be the defendant's costs in the proceedings. (5) Stand the matter over for directions on Monday, 7 September 2020 at 9.30am before the Judicial Registrar. Catchwords: CIVIL PROCEDURE — Originating process — Amendment Cases Cited: Rolfe v Investec Bank (Australia) Ltd [2014] VSCA 38 Category: Procedural rulings Parties: Milad Nader (plaintiff) Prodom Pty Ltd as trustee for The Lovett Family Trust (defendant) Representation: Counsel: Mr J Loxton (plaintiff) Mr L D Robison (defendant) Solicitors: Slattery Thompson Solicitors (plaintiff) Catalyst Legal (defendant) File Number(s): 2020/42807 Publication restriction: None Judgment 1. The plaintiff, Milad Nader, seeks leave to amend his statement of claim in proceedings commenced against Prodom Pty Ltd as trustee for The Lovett Family Trust. Mr Nader claims that he left 18 containers on a property owned by Prodom with the knowledge and consent of Prodom and that thereafter Prodom refused him access to collect the containers and that Prodom removed the containers to a location unknown to Mr Nader. 2. This claim sought to be maintained by Mr Nader in a proposed amended statement of claim is different from the claim originally maintained. The original statement of claim did not clearly identify the causes of action that served as the foundation of the claim and seemed to rely on a cause of action that was unavailable to the plaintiff: it referred to an agreement for lease of Prodom's property by a company in which Mr Nader once had some interest and claimed amounts for breach of the terms of that agreement. Such a claim, although made by Mr Nader, seems only to have been available to the company or, as that company is apparently now in liquidation, the liquidator. 3. However, in the course of that original statement of claim, Mr Nader did plead this: "8. The plaintiff is an employee or agent of the plaintiff's company and owned 18 shipping containers and the plaintiff, in good faith, deposited 18 shipping containers belonging to him on the property at his own costs. 9. The plaintiff sought access to the property to obtain his shipping containers and the defendant refused to allow the plaintiff access." [1] 1. In the pleading, the sum specified in the claim for relief is the amount that arose from a failure of Prodom "to allow access to the property" to Mr Nader. Thus, it seems there is some reference to the present claim in the original pleading. 2. Although there is no explicit explanation of the reason for the amendments and the change in the plaintiff's case, I infer that Mr Nader has removed from the original statement of claim the unjustifiable parts of that claim. He has identified the proposed amendment and intends to maintain the only claim apparently available to him: in bailment and for conversion in respect of the containers that he owns and that were, for a time, stored on Prodom's property. 3. The original statement of claim was silent as to the knowledge of Prodom as to the presence of the shipping containers on the property. The proposed statement of claim explicitly pleads how that knowledge was obtained. Inferences available from a comparison of the two documents provide a sufficient explanation for the change in the case propounded by Mr Nader. 4. The discretion to grant an amendment may also be unavailable if it occasions incurable or significant prejudice, or if the proposed statement of claim does not propound an arguable case so that to grant the amendment would be futile. There is no prejudice other than costs that has been identified, and costs can be cured by an order. The circumstance that there has been an earlier attempt to amend the statement of claim and there has therefore been some delay in the proceedings is relevant, but where the proceedings were commenced earlier this year and no trial date has yet been fixed, I am not persuaded that there is any prejudice that cannot be cured by a costs order. 5. On the question of futility, Prodom has identified six defects in the current proposed pleading. 6. First, it is said that the titles of the parties are incorrect and Mr Nader readily accepts this to be so. The plaintiff and the defendant are named as "First plaintiff" and "Second defendant" respectively. That error is one that can be fixed quickly and cheaply pursuant to a condition on the grant of leave. 7. The second problem identified by Prodom is that the form of the proposed statement of claim does not display the contents of the old statement of claim that have been deleted and so, it is asserted, the difficulty of pleading to the proposed document is increased. There is no need for Prodom to plead to redacted paragraphs of the document, and the changes to the original document are obvious: all but the initial paragraph of the original statement of claim are redacted, and all other parts have been added. 8. In these circumstances, the asserted absence of identification of the paragraphs withdrawn is not a reason against a grant of leave. 9. The third problem identified is the significant difference between the proposed pleading and the pleading that was originally filed. But as I have already identified, the significant change in the pleading is perhaps not as fundamental as might first appear. The old pleading included actions that were not maintainable by Mr Nader and he has now withdrawn those claims. The matter which has been expanded to be the sole claim in the proposed pleading was referred to clearly, though briefly, in the original statement of claim. 10. The fourth difficulty referred to is that the proposed pleading asserts in paragraph 11 that Prodom acted wrongly in "removing the containers from the property to a place unknown to the plaintiff". As I understood the submission, it was that the plaintiff needed to identify a particular nominated location to which the goods were taken. During submissions, this point was explored. Prodom ultimately accepted that it may be that the location of the goods removed need not be identified, that the difference between "remove" and "take away" is a difference of semantics of no real consequence, and that this particular argument was not pressed. 11. The fifth problem with the proposed statement of claim is the asserted absence of particulars of damages. The pleading identifies two components of the damages claimed, one for $45,000 in respect of the 18 containers and the other for $157,000 in respect of the value of the scrap metal contained in the containers. As to the first, there is no other information. It follows from a simple calculation that $45,000 calculates the average value of a container to be $2,500, which was accepted by the plaintiff to be what is asserted. In my view, little is to be gained by further specification of that fact, although no doubt it may be the subject of challenged evidence between the parties if the matter were to proceed to a trial. 12. As to the $157,000 for scrap metal, the pleading does identify that the scrap metal could be sold at $350 per tonne and that the average weight carried by each container was 25 tonnes. When one does the arithmetic, 25 tonnes multiplied by $350 per tonne multiplied by 18 containers calculates to a total sum of $157,500. This is sufficiently close to the amount claimed to not warrant further particularisation. 13. The final defect alleged against the proposed statement of claim is the absence of an allegation that Prodom had knowledge of the contents of the containers. Reliance for this point was placed on the decision of the Court of Appeal of Victoria in the case of Rolfe v Investec Bank (Australia) Ltd. [2] That was not a case that concerned pleadings, but rather was an appeal after a decision at a trial about the alleged bailment of certain containers that contained expensive Porsche motor vehicles. In that decision, the Court made reference to whether the bailee was a bailee also of the contents and not just the containers. [3] Reference was made to various bailment cases where items of value were stored in the containers - luggage and the like - and whether the bailee was responsible not just for the container but for everything in it. 14. At paragraph 62, the Court said: "even in cases where permission to leave chattels on land for the time being amounts to bailment, the better view is that a gratuitous bailee of goods sealed in a container is not liable for the goods as opposed to the container unless the bailee is apprised of the nature and value of the goods or unless the goods are of a character, value and quantity likely to be found in a normal situation of the kind in question." 1. There is in this case, apparently no pleading about the knowledge of Prodom of what is in the containers. However, this passage from the Court of Appeal identifies that it is not always necessary for the bailee to be apprised of the nature and value of the goods, such as where the goods are of a character, value and quantity likely to be found in a normal situation of being carried by the containers. 2. The two alternatives in the quoted passage may be applicable to the different circumstances faced here and by the Court of Appeal. The first – the bailee being "apprised of the nature and value of the goods" - is relevant to where the containers carried valuable collectors' motor vehicles, and the second to circumstances alleged here where the containers carried scrap metal. This distinction between scrap metal and Porsche motor vehicles can also be inferred from paragraph 67 of the Court of Appeal's decision where the Court said: "There was moreover nothing in the evidence or otherwise to rebut the impression which arises as a matter of common sense and ordinary experience that rare and expensive motor cars are of a character and value altogether different to what one might reasonably expect would be left in unattended containers in a disused shipping yard without express disclosure of the nature and quality of what is within." 1. Whether scrap metal is of "a character and value altogether different to what one might reasonably expect would be left in unattended containers" is a matter for trial. The scrap metal contents of the containers are the larger part of the claim, but the principle remains that one has to look at the nature of the contents. Matters such as common sense and ordinary experience would inform whether an absence of knowledge in the defendant of the contents of the containers is critical. This circumstance is not a question for pleading, but a matter for trial. 2. In the result, I am not satisfied that the proposed pleading is defective so as to be futile. The plaintiff may face challenges in the proceedings, but that is not a reason to preclude an amendment that will allow the real issue to be ventilated. 3. The orders of the Court are: 1. Notice of motion granted. 2. Grant leave to the plaintiff to file the Amended Statement of Claim annexed to the affidavit of Peter Livers of 15 July 2020: 1. with a correction to the title of the parties so that the first plaintiff and second defendant are referred to as the plaintiff and defendant respectively; and 2. to permit, if the plaintiff is so minded, an additional paragraph pleading facts going to the alleged knowledge of the defendant as to the contents of the containers, such Amended Statement of Claim to be filed within 14 days. 1. Plaintiff pay the costs thrown away by the amendments and should include, to the extent it is not covered by my costs order of 18 June 2020, the costs of the earlier strike out motion of the defendant. 2. Costs of the motion be the defendant's costs in the proceedings. 3. Stand the matter over for directions on Monday, 7 September 2020 at 9.30am before the Judicial Registrar. ********** Endnotes 1. At [8]-[9]. 2. [2014] VSCA 38. 3. See [59]. 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