Woods v Woods [2000] NSWSC 179

New South Wales Supreme Court

CITATION : Woods v Woods [2000] NSWSC 179 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1973/97 HEARING DATE(S) : 24 February 2000 JUDGMENT DATE : 24 February 2000

Glenn Woods (P1) Marcia Woods (P2) PARTIES : Desre Clair Woods (D1) Richard Lee Woods (D2) Amanda Jane Woods (D3) JUDGMENT OF : Hamilton J

COUNSEL : P P O'Loughlin (P1 & 2) Alex Radojev (D1-3) SOLICITORS : Clinch Neville Long (P1 & 2) Karageorge & Co (D1-3) CATCHWORDS : PROCEDURE [101] - Supreme Court procedure - Practice under Supreme Court Rules - Amendment - Application to amend cross claim after hearing of substantive issues but before determination of relief - Whether delay causing prejudice - Order for costs as rectifying consequences CASES CITED : Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 DECISION : Application to amend cross claim granted.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 24 FEBRUARY 2000

1973/97 GLENN WOODS & ANOR v DESRE CLAIR WOODS & ORS

JUDGMENT - On notice of motion for amendment of cross claim

HIS HONOUR: 1 This is a motion by the first defendant in these proceedings to file an amended cross claim. The amended cross-claim that she seeks to propound relies upon the breach of what is alleged to be an implied term in the contract between the plaintiffs and the first defendant to the effect that the plaintiffs should maintain the house property the subject of these proceedings in a condition fit for habitation by the first defendant during her occupation of it. There is evidence indicative of a failure after disputes broke out to carry out repairs to the property. One of the worst instances is a failure to reinstate a failed hot water system, leaving the property without hot water. The hot water system was reinstated after some time, but not apparently by the plaintiffs. If the amendment is allowed, a number of issues will arise. They will include whether or not a term of the contract such as is alleged is to be implied in the contract, whether or not that term is an essential term of the contract, whether or not the actions or inactions of the plaintiffs amounted to such a breach of the term as to constitute a repudiation of the contract, and whether or not the first defendant accepted that repudiation. Ultimately what is in issue is whether or not the first defendant can claim in these proceedings damages for a loss of her bargain, or, whether, in the circumstances which have occurred, she is entitled only to a declaration that the contract exists and an order to ensure that the contract is carried out, if that on the evidence be necessary. 2 There is no doubt that this application for amendment comes late in the day. It comes after a judgment delivered by me as to the parties' rights, which was delivered after a trial of the proceedings before me: Woods v Woods [1999] NSWSC 275. During that trial the question of the lack of repair of the property and any obligations arising in relation thereto simply were not raised on the first defendant's behalf. That is certainly something that sounds against the amendment being allowed at this late stage. On the other hand, Mr O'Loughlin, of counsel for the plaintiffs, very properly and frankly tells the Court that, if the amendment were refused and if the first defendant sought to bring subsequent proceedings based upon the state of repair and the obligations in relation thereto, he anticipates that those proceedings would be sought to be defeated by defences of issue estoppel or Anshun estoppel arising out of the hearing and determination of these proceedings. 3 Mr O'Loughlin has given to the Court clear written submissions in opposition to the amendment and his oral address in support of those submissions has been vigorous and eloquent. He properly conceded the principle "that amendments should be granted liberally to determine the real questions raised by or dependent on the proceedings". He said that that general principle was subject to the following four exceptions: