Deen Pty Ltd v Geodesy Pty Ltd & Ors [2024] NSWDC 111

District Court New South Wales

Medium Neutral Citation: Deen Pty Ltd v Geodesy Pty Ltd & Ors [2024] NSWDC 111 Hearing dates: 11 April 2024 Date of orders: 11 April 2024 Decision date: 11 April 2024 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraphs [55]-[57] Catchwords: CIVIL PROCEDURE – alleged partnership dispute – applications for summary dismissal and (alternatively) strike out of an amended pleading – amended pleading filed out of time directed – whether leave to amend should be granted retrospectively Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 58(2) Corporations Act 2001 (Cth) s 1317H Uniform Civil Procedure Rules 2005 (NSW) r 13.4, 14.28 Cases Cited: Agar v Hyde (2000) 201 CLR 552 Texts Cited: J Hamilton, G Lindsay and C Webster New South Wales Civil Procedure Handbook 2023 (Lawbook Co, 2023) Category: Procedural rulings Parties: Deen Pty Ltd (Plaintiff/Cross Defendant) Geodesy Pty Ltd (First Defendant/Cross Plaintiff) Vrusabh Jayesh Shah (Second Defendant) Robert Seymour Davidson (Third Defendant) Representation: Counsel: Mr A Patterson (Plaintiff/Cross Defendant) Ms R Kumar (First Defendant/Cross Plaintiff) Solicitors: Edmond Khoury Solicitors (Plaintiff/Cross Defendant) Harmers Workplace Lawyers (First Defendant/Cross Plaintiff) File Number(s): 2022/00302017 Publication restriction: Nil

EX TEMPORE REASONS FOR JUDGMENT 1. Litigation between the plaintiff, and respondent on the motion ("Deen") and the defendant and applicant on the motion ("Geodesy") commenced in the Small Claims Division of the Local Court of New South Wales on 10 October 2022. That litigation featured a relatively modest claim by Deen for breach of a services contract and, alternatively, a claim on a quantum meruit, for a liquidated sum (just over $17,000 excluding interest), arising from what was said to be Deen's supply of services to Geodesy in 2019 and 2020. 2. Geodesy defended Deen's claim, partly by positing a different relationship to that which Deen alleged. Whilst the dispute was still in the Local Court, Geodesy also cross-claimed against Deen and other parties. In that cross-claim (as amended as at 16 December 2022), Geodesy contended that Geodesy and Mr Timothy Sigley (who was, amongst other things, a director and then Managing Director of Geodesy) and Deen entered into a written arrangement in 2021 relating to surveying and town planning services to be supplied to Geodesy. Geodesy relevantly complains that Mr Sigley and Mr Deen severally breached terms of that arrangement, and also fiduciary duties and obligations owed to it under the Corporations Act 2001 (Cth). 3. On 25 May 2023, the litigation in the Local Court was transferred to this Court on the basis that the relief sought in Geodesy's cross-claim exceeded the Local Court's (monetary) jurisdictional limit. 4. On 6 July 2023, a direction was made by Olsson SC DCJ that Deen serve an amended statement of claim and a referral was made for a mediation. A timetable was also set for evidence. 5. An amended statement of claim was filed on 20 July 2023. 6. For reasons not now necessary to refer to, on 13 October 2023, the Judicial Registrar made a consent direction for Deen to file and serve a further amended pleading by 27 October 2023. In the events that occurred, it was only on 13 November 2023 that Deen filed an amended pleading and on 28 November 2023, Deen's solicitor, Mr El Khoury, filed a notice of motion in which two orders were sought. First, Mr El Khoury sought a further grant of leave to rely on the amended pleading filed on 13 November 2023. Secondly, Mr El Khoury sought an order that Geodesy comply with a notice to produce that he had issued, on Deen's behalf, to Geodesy's solicitor, on 13 November 2023. 7. As to the amended pleading, its content was transformational to the litigation: Deen effectively abandoned the claim that had been brought against Geodesy in the Local Court. Put very simply, for introductory purposes, Deen's complaint now concerned its mistreatment by Geodesy, and two of its officers (Ruslow Shah and Mr Davidson) as a minority shareholder in Geodesy. 8. On 15 December 2023, Geodesy brought the current notice of motion. That motion contains applications that Deen's amended pleading filed on 13 November 2023 be summarily dismissed (under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW)) ("UCPR") or struck out (under r 14.28 of the UCPR); and for an order that Deen's notice to produce dated 13 November 2023 be set aside.