Tred Consultants Pty Ltd v Kirana Training Pty Ltd (No.2) [2021] NSWDC 138

District Court New South Wales

Medium Neutral Citation: Tred Consultants Pty Ltd v Kirana Training Pty Ltd (No.2) [2021] NSWDC 138 Hearing dates: 26 April 2021 Date of orders: 26 April 2021 Decision date: 26 April 2021 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 22 Catchwords: PRACTICE AND PROCEDURE – application to further amend pleading – application arises from findings of referee's report objected to by defendant as beyond the scope of the plaintiff's existing pleading – consideration of exercise of discretion to grant leave to amend Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 58 Uniform Civil Procedure Rules 2005 (NSW) r 14.14 Cases Cited: Aon Risk Services Australia v Australian National University (2009) 239 CLR 175 Tred Consultants Pty Ltd v Kirana Training Pty Ltd [2020] NSWDC 690 Texts Cited: Nil. Category: Procedural rulings Parties: Tred Consultants Pty Ltd (Plaintiff/Cross-Defendant) Kirana Training Pty Ltd (Defendant/Cross-Claimant) Representation: Counsel: Mr R McCrudden for the plaintiff/cross-defendant Mr S Baron Levi for the defendant/cross-claimant

Solicitors: FutureLegal for the plaintiff/cross-defendant United ACL for the defendant/cross-claimant File Number(s): 2018/206266 Publication restriction: Nil.

Judgment

BACKGROUND 1. By a notice of motion filed on 22 April 2021, the plaintiff applies for leave to further amend its pleading. 2. This proceeding commenced on 4 July 2018. On 29 October 2020, the matter came before me for hearing. On the first day of the hearing, after hearing opening addresses from Counsel, the proceeding was partially referred to a referee, to consider accounting questions raised by the defendant. The circumstances in which that referral occurred are set out in Tred Consultants Pty Ltd v Kirana Training Pty Ltd [2020] NSWDC 690. It is not necessary to repeat them here. 3. Following some delays, on 22 March 2021, the referee has reported and the defendant has, separately, formally applied for adoption of that report. Prior to the hearing of the amendment application, Counsel for the plaintiff indicated that it was common ground that the referee's report should be fully adopted. In response to that indication, after raising my view with Counsel, I decided to defer the question of adoption until after my determination of the amendment application, a course which neither party disputed. As I will now indicate, the contents of the referee's report underpin the present amendment application. 4. Notably, the defendant has submitted in its application for adoption of the report, that one basis for calculation should be accepted but not another, being what the defendant refers to as the referee's 'Second Calculation'. This calculation was identified as being based upon the amount that would have been owed to the plaintiff, if it had received the benefit of claims invoiced for, but in respect of which, the defendant did not make claims to the government. The "first" calculation – the results of which the defendant seeks to have adopted – was, in contrast, directed to assessing what was owed by the defendant to the plaintiff if this was based upon funding actually received by the defendant. In this way, it may be seen that the contentious 'Second Calculation' was framed as being additional to the First Calculation. In the supporting affidavit for the adoption of the referee's report, the defendant makes a submission that the Court should disregard the Second Calculation. This was because the defendant has only ever had to meet a case that its liability to the plaintiff was based upon the funding it had received from government (at state and/or federal level). It says that although the referee properly considered the matter, within the terms of the reference, it had made it clear throughout the reference that, formally, it objected to the referee doing so, since it fell outside the scope of the pleading. 5. It is common ground that the referee qualified the results of the Second Calculation: the referee had opined that it had not verified the invoices or claims which the defendant had received from the plaintiff but which had not been lodged with 'government' and that only an audit could verify those claims. In argument on the present application, the defendant says that the qualification, or reservation, was explicable as the plaintiff's evidence rose no higher than bare assertions which the referees effectively noted, and had indeed quantified, but did not endorse.