Sirius Shipping Corporation v The Ship Sunrise [2006] NSWSC 164

New South Wales Supreme Court

CITATION : Sirius Shipping Corporation v The Ship Sunrise [2006] NSWSC 164

HEARING DATE(S) : 13-15 March 2006 JURISDICTION : Equity Division Admiralty List

JUDGMENT OF : Young CJ in Eq

EX TEMPORE JUDGMENT DATE : 03/15/2006

DECISION : Leave to withdraw admisson by amending cross-claim.

CATCHWORDS : PROCEDURE [99]- Admissions- Formal admissions- Discretion to give leave to withdraw- Principles.

Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 CASES CITED : Drabsch v Switzerland General Insurance Co Ltd (Santow J, 16.10.1996, BC9604909) Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327

Sirius Shipping Corporation (P) The Ship "Sunrise" (D) PARTIES : Richard Evans (First Relevant Person) Capital Finance Australia Limited (Second Relevant Person) Hunt Pacific Finance Pty Ltd (Third Relevant Person)

FILE NUMBER(S) : SC 6/03

I H Wallach (P) COUNSEL : P T Russell (2nd Relevant Person) J M White (3rd Relevant Person)

Prider & Co Lawyers (P) SOLICITORS : Bartier Perry (2nd Relevant Person) Swaab Attorneys (3rd Relevant Person)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADMIRALTY LIST

YOUNG CJ in EQ

Wednesday 15 March 2006

06/03 – SIRIUS SHIPPING CORPORATION v THE SHIP "SUNRISE" JUDGMENT 1 HIS HONOUR: The third relevant party has sought leave to amend its defence to the cross-claim in accordance with the document which has been marked for identification MI 699. The problem with the amendment is that it seeks to withdraw an admission that was made in the pleadings. 2 The case on the first cross-claim is that the third relevant party, who can briefly, but perhaps not completely accurately, be described as a broker, forwarded an application for finance to the second relevant party, a financier, and the financier says that under the Recourse Agreement between them in the circumstances it is entitled to an indemnity against any loss. The admission on the pleadings was that the application was submitted pursuant to the Recourse Agreement called between the parties Introducer Agreement. It is now sought to withdraw that and say that an application was made to the financier's group, but that the introduction was not for the company which may have suffered the loss but rather on an associated company Capital Commercial Finance Ltd. The only evidence tendered to the call on this document in relation to this evidence is AX 135 where the same appears against the words "introduced to" in the form. 3 Mr Russell, who appears for the financier, strongly resists this application. He says here it is on the third day of the trial, a case commenced years ago and that his client has been able to prepare this case on the basis that the introduction pursuant to the Introducer Agreement was not in issue and now it might be. That may involve obtaining evidence to show that the parties dealt with each other on the basis that this matter was pursuant to the Introducer Agreement and may also involve him having to amend his reply by adding defences of estoppel. 4 There is no problem, I would have thought, with proceeding with this case as far as I can and then granting an appropriate adjournment for these matters to be properly considered and any further evidence filed. It certainly is unfortunate that the case cannot be concluded today if I grant the adjournment, but I must balance a number of factors because, in the ultimate, the question is one of the attainment of justice rather than trying to apply any artificial approach. 5 The principles that the Court considers in this sort of application are agreed by the parties and are as set out in the report of the Full Federal Court in Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327. But that decision is based on decisions in this Court, first by Rogers CJ at Com D in Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 and then by Santow J in Drabsch v Switzerland General Insurance Co Ltd (16 October 1996, unreported, BC9604909) but his Honour's principal points are summarised in the Jeans case at 331. 6 This sort of application should not be freely granted and a fortiori when it is made at the very heel of the hunt. There is evidence that the admission was made carefully rather than deliberately. There is also the fact, whilst it will be an unfortunate delay of final resolution of the proceedings, that an appropriate order for costs of an adjournment will remedy any problem on the other side, and it seems to me that looking at all the factors and bearing in mind one is trying for the attainment of justice, I should allow the amendment. 7 So far as costs is concerned obviously there will have to be an order for costs to be paid by the third relevant person of the costs occasioned by and thrown away by making the amendment. I make that order, but I will reserve further questions of costs for later in the hearing. 8 I order leave to amend in accordance with document MI 699 which can now be filed.