New South Wales Supreme Court CITATION : Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd [2004] NSWSC 799 HEARING DATE(S) : 30 August 2004 JUDGMENT DATE : 30 August 2004 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Late amendment allowed. Costs ordered but order for assessment and payment forthwith refused. CATCHWORDS : PROCEDURE [552] - Costs - Jurisdiction - Other cases - Costs of interlocutory proceedings - Payable forthwith - When court may order - Relevant circumstances. LEGISLATION CITED : Conveyancing Act 1919 s 54A CASES CITED : Fiduciary Ltd v Morningstar Inc (2002) 55 NSWLR 1 The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Pyoja Pty Limited (P) PARTIES : 284 Bronte Road Developments Pty Limited (1D) Steven Christofidellis (2D) FILE NUMBER(S) : SC 4523/03 COUNSEL : M J Cohen (P) P K Bruckner (D1 & 2) SOLICITORS : Savio (P) Bolzan & Dimitri (D1 & 2) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J MONDAY, 30 AUGUST 2004 4523/03 PYOJA PTY LIMITED v 284 BRONTE ROAD DEVELOPMENTS PTY LIMITED & ANOR JUDGMENT 1 HIS HONOUR: I have before me a notice of motion for amendment of the defences in this case to plead s 54A of the Conveyancing Act 1919 ("the CA"). Notice of the amendment was given orally only on Friday, and the written application was brought forward only on this Monday morning. Today is the day on which the matter is fixed for trial as a one day case. The portion of the claim to which the proposed amendment applies is a portion in which the plaintiff relies on a contract, the bulk of which is in the ordinary form for contracts for sale of land, but part of which is in a handwritten unsigned document, the terms of which are set out in the affidavit of Van Dimitri sworn 1 September 2003 which is on the file. 2 The defendants' reason for the late bringing forward of the defence is that they were confused as to what document the plaintiff was relying on and whether or not they needed to plead s 54A. They rely on the plaintiff's slowness in informing them as to whether or not the authenticity of the document was admitted as leading to this late application and as going particularly to the question whether, if I allow the application, which it is conceded will result in today's hearing aborting, the costs ordered against the defendants should be on the ordinary or the indemnity basis. 3 I regard the explanation for the late bringing forward of the statutory defence as quite inadequate. It is clear from paragraph 4 of the statement of claim that the plaintiff relied upon a handwritten "addendum" to the contract. The only candidate for the document constituting that addendum that has ever been identified is the document to which I have already referred. It is plain, from the face of that document, that it is unsigned. Furthermore, there was some suggestion, in particulars given before the end of last year, that the contract was in part oral. It seems to me that it has, for a long time, been plain that a defence under s 54A of the CA was appropriate in some form and it ought have been brought forward long before this morning. 4 Mr Mark Cohen, of counsel for the plaintiff, has referred me to the passage in The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 in the judgment of Kirby J at 170 to 171. However, I must bear in mind that the judgments in JL Holdings, and other relevant cases, make it plain that the governing principle is that parties must be allowed to litigate their real cases, unless there is a prejudice to the other party or parties which cannot be met. 5 Although this is a conveyancing case, the transaction involved was settled a long time ago and all that remains to be determined is whether the purchaser should pay the vendor an additional $200,000 in purchase money. Mr Cohen has not been able, in the exercise of his ingenuity, to persuade me that an appropriate order for costs is not able to meet the plaintiff's prejudice in this case. The inadequacy of the defendants' explanation for the defence not being pleaded long ago, leads me to the conclusion that that order for costs should be on the indemnity basis. …oOo… 6 Mr Cohen has applied to me under Part 52A r 9(1) for an order that the costs ordered in the plaintiff's favour be assessed and payable forthwith. I decline to make that order. The usual rule is that costs ordered before the conclusion of the proceedings are not assessed and paid until the end of the proceedings: see Fiduciary Ltd v Morningstar Inc (2002) 55 NSWLR 1. In my view, there is no case established for an order to the contrary. The criteria by which costs may be ordered forthwith are not limited to the consideration set out in Part 52A r 9(3). However, I do not infer from the evidence before me that the defendants have set out to create this situation. I bear in mind that the matter is back before Gzell J only a fortnight hence for a further date to be fixed. There is no evidence before me on this motion of financial embarrassment on the part of the plaintiff. It was more than two years ago that the transaction out of which the proceedings arise was completed. 7 In all the circumstances, I do not think it appropriate to order that these costs, which will play their part in the final washup of costs in these proceedings in the fairly near future, ought to be ordered to be assessed and paid forthwith. ********** Last Modified: 09/23/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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