New South Wales Supreme Court CITATION : Anthony Magafas & Anor v Peter Carantinos & Ors [2007] NSWSC 487 HEARING DATE(S) : 2/04/07, 4/04/07, 5/04/07, 11/04/07, 16/04/07 - 20/04/07, 23/04/06, 26/04/06 JUDGMENT DATE : 15 May 2007 JURISDICTION : Equity Division JUDGMENT OF : Einstein J DECISION : Leave granted. CATCHWORDS : Leave to amend Anthony Magafas (First Plaintiff) Pac Com Pty Limited (Second Plaintiff) PARTIES : Peter Carantinos (First Defendant) Fotini Carantinos (Second Defendant) Artesian Pty Limited (Third Defendant) FILE NUMBER(S) : SC 2670/06 COUNSEL : Mr T Alexis SC, Mr S Golledge (Plaintiffs) Mr CRC Newlinds SC, Mr A Bowen (Defendants) SOLICITORS : Rockliffs (Plaintiffs) Munro Lawyers (Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION Einstein J Tuesday 15 May 2007 2670/06 Anthony Magafas & Anor v Peter Carantinos & Others JUDGMENT – Reasons for leave to amend Application for leave to amend paragraph 9 (ii) of Amended Summons dated 28 November 2006 1 The application to amend was the subject of a decision notified to the parties with the reasons to follow at an appropriate time. The reasons are as now set out. 2 It is clear that when the statement of claim was filed on 22 June 2006 it claimed [paragraph 9] that to the extent that Mrs Carantinos obtained a legal interest as a result of the purchase of 43 Riverside Crescent with Mr Carantinos, she was a volunteer in respect of that purchase and /or she took that interest with notice of the beneficial interest of the Pac Com partnership or joint-venture. 3 Somewhere along the line as between that original statement of claim and the propounding of the amended statement of claim, the reference to Mrs Carantinos taking an interest with notice of the beneficial interest of the Pac Com partnership or joint venture is now said to have been inadvertently altered to become that she took the interest with notice of the beneficial interest of Pac Com only. 4 In this regard it is appropriate to refer to the definitions to be found in paragraph 1 of the initial statement of claim in relation to what was defined to be the partnership or joint-venture. 5 The reason advanced by senior counsel for the Magafas interests as to the reason for the late application to amend is that he had not understood that this was in issue and that the mistake was obvious when one compared the earlier and the later pleadings. 6 The Court determines applications for leave to amend in terms of the specifics of the occasion and the interests of justice. The arguments put forward by senior counsel for the Carantinos parties were of two dimensions: i. the first raised issues said to make good the proposition that the contention sought to be raised within the amendment was out of Court as a matter of law: that is to say the proposition was that it was futile to pursue the amendment. One of those arguments for example contended that it was not possible for agency to be proven out of the mouth of the agent; ii. The second concerned the Carantinos parties not having called Mrs Carantinos in their case. Allied with this contention was the contention that Mrs Carantinos' advanced stage of pregnancy may well make it difficult if not impossible for her to be called for some time. 7 In my view the arguments of the first character were insufficient in substance to warrant the Court refusing the leave to amend even at the late stage when the application came forward. 8 However the leave to amend was appropriate to be granted conditionally on the Carantinos parties being entitled, should they determine to elect this route, to call Mrs Carantinos as and when practicable in which regard the Court would allow that evidence to be called when it could be called. 9 The decision was made in terms of the usual very great significance of prejudice or lack thereof to one or the other party depending as the application for leave to amend was granted or not granted. It was quite clear that in the circumstances, as long as the Carantinos parties would be able to call Mrs Carantinos, the principled the exercise of the discretion was to allow the amendment. [Ultimately the defendants elected not to call Mrs Carantinos but to reopen their case to tender documents which were admitted into evidence without objection]. 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.