Corporate Documentation Management Pty Ltd v Kathy Bagshaw [2021] NSWSC 1719

Supreme Court New South Wales

Medium Neutral Citation: Corporate Documentation Management Pty Ltd v Kathy Bagshaw [2021] NSWSC 1719 Hearing dates: 17 September 2021 Date of orders: 19 October 2021 Decision date: 19 October 2021 Jurisdiction: Equity Before: Rein J Decision: See [49] Catchwords: CIVIL PROCEDURE — Pleadings — Amendment – where the Plaintiff sought to amend its Statement of Claim, which application was opposed by the Defendant who asserted the proposed Amended Statement of Claim ("ASTOCL") was embarrassing, inadequately particularised, and that its filing would be in breach of an agreement reached between the parties in respect of a joint expert – where the Defendant identified a discrepancy between the amount of the loss and damaged claimed and the total figures claimed in the earlier part of the pleading – where the Defendant claimed filing the ASTOCL would be in breach of an agreement in relation to the retainer of the joint expert, which report focused on the Plaintiff's ten main vendors ("the Ten Vendors") and did not include the any other vendors ("the Secondary Vendors"). The breach asserted was that it was agreed the expert would examine all transactions, not just the Ten Vendors, however the parties provided to the expert an Index of Documents relating to only the Ten Vendors – Held: the pleadings were not in a defective form, save for the discrepancy issue, and the Defendant could not have any difficulty in understanding what is alleged against her – leave granted to the Plaintiff to file an ASTOCL, however, noting the discrepancy issue, not in the form proposed. The Plaintiff to provide an explanation as to the discrepancy identified by the Defendant and, if need be, amend the ASTOCL to ensure there is no disconformity between the total of the amount claimed in later paragraphs and the amounts claimed in earlier paragraphs – Held: it is not appropriate to determine on this application whether there was a breach of the agreement by the Plaintiff or to preclude the Plaintiff from filing an ASTOCL because the expert report has not examined all of the secondary vendors. Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd [2021] NSWSC 961 Johnson v Miller (1937) 59 CLR 467 Kelly v Mina [2014] NSWCA 9 McGuirk v University of NSW [2009] NSWSC 1424 Meckiff v Simpson [1968] VR 62 Northam v Favelle Favco Holdings Pty Ltd (Supreme Court (NSW), Bryson J, 7 March 1995, unrep) R v Walsh (2002) 131 A Crim R 299 Texts Cited: Nil Category: Principal judgment Parties: Corporate Documentation Management Pty Ltd (Plaintiff) Kathy Bagshaw (Defendant) Representation: Counsel: Mr D Studdy SC (Plaintiff) Mr R Lovas (Defendant)