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: (1) the amendment must not be futile and liable to be struck out; (2) the application must be made for a proper purpose; (3) the amendment must not cause prejudice to the other party that cannot be compensated for by consequential orders including costs orders; (4) the amendment must not be contrary to the administration of justice. In relation to the last of those four points - and perhaps also in relation to the second - he said that this application for amendment to raise a previously unagitated subject matter after judgment would give the first defendant a tactical advantage. He said that because the plaintiffs have fought and been defeated in the litigation on quite other bases they are put in a situation where no costs orders can compensate for the prejudice that would be occasioned to them by the amendment being granted. Mr O'Loughlin also submitted that the result upon the amended cross claim, if allowed, will be inevitable failure. 4 In determining the application for amendment I bear in mind the principles enunciated by the High Court in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. 5 I have taken into account all of the matters that have been put to me. Whilst Mr O'Loughlin has drawn attention to weaknesses in the first defendant's potential case on the amended cross claim, particularly on the basis of the evidence as it now stands, and made powerful submissions that may in due course be put against it, in my view he has not established that the cross-claim, if allowed, must inevitably fail. I have also considered the matters that he has put to me as supporting the others of the four exceptions that he enunciated. I am not unmindful that the plaintiffs will suffer prejudice by the allowance of the amendment at this stage. On the other hand I bear in mind their stance that they will attempt to shut the first defendant out of agitating these matters relating to repair by reference to the result of these proceedings if subsequent proceedings be brought. One matter that needs to be borne in mind in assessing the situation is that it is not the situation at this stage that there is to be no further hearing of these proceedings. The question of the extent of the availability of the remedy of damages to the first defendant has not yet been dealt with finally. So, there must be some further hearing with which any hearing on the amended cross claim will be combined. Furthermore, particularly from the point of view of the Court's time, insofar as that is a material consideration, the Court could not by refusing this amendment, and despite what Mr O'Loughlin has said as to the plaintiffs' attitude, preclude the first defendant from bringing further proceedings based upon the subject matter of the amended cross claim, leading to complex and difficult argument traversing the whole subject matter of the dispute between the parties to determine whether or not an Anshun estoppel was established. 6 Bearing in mind all these considerations, I propose to grant the amendment prayed for. It seems to me that, in amelioration of the plaintiffs' prejudice caused by this, I should order that the first defendant pay the plaintiffs' costs of this motion and further that the first defendant pay the plaintiffs' costs thrown away by the allowance of this amendment. An application is made to me for leave to assess those costs and enforce those costs orders forthwith. That application is refused. …oOo… Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.