Lowe v Lang [1999] NSWSC 797

New South Wales Supreme Court CITATION : Lowe v Lang [1999] NSWSC 797 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 1082/96 HEARING DATE(S) : 19 & 27 July 1999 JUDGMENT DATE : 27 July 1999

Michael Campbell Lowe (P) PARTIES : Barry Arthur Lang (D1) Erolgreen Pty Ltd (D2) JUDGMENT OF : Hamilton J

COUNSEL : P T Taylor (P) P J Deakin QC and P R Stockley (D1 & 2) SOLICITORS : Baldock Stacy & Niven (P) Kenny Spring (D1 & 2) CATCHWORDS : PROCEDURE [101] - Supreme Court - NSW - Procedure under SCR - Amendment - Late application - No incurable prejudice. CASES CITED : The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 DECISION : Application to amend statement of claim granted.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 27 JULY 1999

1082/96 MICHAEL CAMPBELL LOWE v BARRY ARTHUR LANG and EROLGREEN PTY LIMITED

JUDGMENT (see page 353 of transcript)

HIS HONOUR: 1 Application was made on the first day of the trial on behalf of the plaintiff for a further amendment of the amended statement of claim. The principal substance of the amendment sought is an amendment to par 3. Par 3 as it stood alleged that the promise made by the first defendant to the plaintiff is that he "would pay to the Plaintiff 20 per cent of any royalties earned by the First Defendant from the Quarry over the life of the Quarry". The amendment seeks to remove from that formula the words "by the First Defendant", so that the amended par 3 will allege an obligation by the first defendant to pay to the plaintiff a sum equivalent to 20 per cent of the royalties earned, whether, in the event, if the quarry proceeded, those moneys were paid to the first defendant or to some other person or entity nominated by him. As I have said, it was not until the first day of the trial that this amendment was sought. On the other hand, this being a case in which written evidence has been filed, no amendment to the evidence was sought by reason of the proposed amendment to the pleading; the amended pleading would be based upon, and, it is said, in accordance with, the evidence, particularly the evidence of the vital conversation, already filed. 2 Mr Deakin, of Queen's Counsel for the defendants, has objected that this effects a radical change to the form of contract alleged, and that at a very late stage. There is justice in the suggestion that the form of the contract sued upon would be significantly changed by this amendment. However, as already said, the amendment in a sense brings the pleading into accordance with the evidence already filed. Furthermore, although Mr Deakin has expressed fears as to prejudice that may be suffered by the defendants arising from the amendment, he is now on the eighth day of the trial unable to specify any prejudice that the defendants will suffer which is incurable. 3 The result is that I propose to allow the amendment and to grant leave to the plaintiff to file in Court the further amended statement of claim which has been brought forward as embodying the amendment in the form finally desired: see The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. However, it should be said that if, during the further hearing of the proceedings, the defendants find themselves under prejudice by reason of this change of course on the plaintiff's part, I shall make whatever directions are necessary by way of adjournment or otherwise to permit that prejudice to be met, and the defendants are reserved leave to make application in that regard. 4 There has also been debated before me a question of particulars relating to par 28 of the further amended statement of claim, there being no amendment made to this paragraph by the amendment recently allowed. Earlier during the trial, Mr Deakin complained of the generality of the allegations made in par 28, and, in particular, of the lack of any statement as to how the partnership and/or joint venture alleged in that paragraph were constituted or came into effect. I indicated that I was of the view that, despite the lateness of the application, the defendants were entitled to particulars of the terms of the partnership and/or joint venture alleged, and as to how that partnership and/or joint venture arose. These were furnished by the plaintiff to the defendants in a document which I have this morning admitted as Ex D. The document as admitted contains an amendment suggested by me as a result of a complaint of Mr Deakin. 5 Mr Deakin makes two other complaints about the document. One is as to the uncertainty of the term "control" in par 2(d). I do not think there is any difficulty about this. I think the subparagraph simply adverts to the fact that, as Mr Lang was the owner of the land, he was the person who could nominate to whom the royalty ought be to be paid, that is, either to himself or some other person or entity nominated by him. Mr Taylor, of counsel for the plaintiff, has confirmed from the Bar table that the word "control" in that context refers to no more than what I have just stated. However, Mr Deakin also complains that the term "instructions given and representations made" in par 2(c) calls for further particulars; Mr Taylor replies that they are all matters already contained within the evidence. 6 However, on the ordinary law relating to particulars that is no answer. The opposing party is entitled not to be told, "Go and look in the evidence," but to be told how it is that the alleging party seeks to make out its case. In those circumstances, I direct that the plaintiff give to the defendants particulars of the instructions and representations alleged in par 2(c) of the particulars of par 28 which are Ex D. 7 All questions of costs arising from these applications are reserved.