New South Wales Supreme Court CITATION : Barkat & anor v Bitel & anor (No 2) [2008] NSWSC 408 HEARING DATE(S) : 2 May 2008 JUDGMENT DATE : 5 May 2008 JURISDICTION : Common Law JUDGMENT OF : Michael Grove J DECISION : See orders in pars 13, 14, 15 and 17 CATCHWORDS : PARTICULARS - Claims outside scope of pleading - Entitlement of defendant to require appropriate specification - Amendment of defence - Interlocutory relief LEGISLATION CITED : Civil Procedure Act 2005 CATEGORY : Procedural and other rulings PARTIES : Mark BARKAT and Rubina BARKAT - Plaintiffs David Lee BITEL and Lawrence John GRAVES - Defendants FILE NUMBER(S) : SC 2006/20083 COUNSEL : In person - First Plaintiff N J Beaumont - Defendants SOLICITORS : Middletons - Defendants IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Monday 5 May 2008 2006/20083 MARK BARKAT & anor v DAVID LEE BITEL & anor (No 2) JUDGMENT 1 HIS HONOUR: There are before the Court notices of motion filed on behalf of each of the contesting parties. I shall deal first with that filed by the defendants. Necessary context can be derived from my judgment in this litigation delivered on 7 February last [2008] NSWSC 43 which should be regarded as incorporated herein. It suffices to observe that on that occasion leave to amend the statement of claim so as to claim damages on a misconceived basis was refused. The plaintiffs are currently conducting the litigation without legal representation. No appeal was lodged against the judgment of 7 February. 2 Thereafter, in correspondence, specifically letters to the defendants' solicitors signed by the first plaintiff Mr Mark Barkat dated 4 March, 17 March and 2 April purported to supply particulars. In these there have been repeated claims for damages calculated on the basis of an entitlement founded upon the misconception already rejected and, in effect, by those particulars ignoring the refusal of amendment. 3 I interpolate that part of the correspondence had been excised from the copies exhibited to the affidavit relied upon by the defendants in support of their motion. Mr Barkat complained of this and in his own affidavit exhibited the entirety of the letters. I was thereby able to observe that, with complete propriety, the defendants' solicitors omitted propositions by Mr Barkat for settlement which were, incidentally, at least purported to be based upon the appropriate measure of damage referred to in the earlier judgment. 4 The defendants should not be required to respond to particulars which are tainted in the sense of seeking to advance a claim for damages which lies outside the scope of the statement of claim. Therefore pursuant to s 61 of the Civil Procedure Act 2005 and the Rules of Court I will limit the claims for damages by excluding what has been particularized. 5 I recognize that the terms of those letters appear to include what might comprehend a claim on an appropriate basis but the defendants are entitled to proper particulars and I propose to make an order as sought in paragraph 2 of the notice of motion. 6 The plaintiffs should take notice that repetition of particulars based upon claims for damages in accordance with what was sought by the refused amendment to the statement of claim may be likely to be met with significant consequences. These consequences may include restraint upon proceeding with their action and even ultimately dismissal of it. 7 Inexorably intertwined with the pursuit of the plaintiffs' damages which they calculated on an unsustainable basis is the presentation of experts reports. Mr Barkat pointed out that these experts were professionally qualified and appropriately acknowledged the binding force of the applicable code of conduct for such witnesses. There is no reason to doubt those matters but the defect is that they have been directed to set about the wrong task or, if they have not been the subject of directions they have simply embarked upon a task and expressed opinions which are incompatible with the available measure of damages. 8 Mr Barkat drew attention to that part of the earlier judgment where I said: "The defendants, in the event that amendment was refused, sought a direction restraining the plaintiffs from adducing evidence from various experts which had been foreshadowed by them. There is no formal motion to that effect and I consider that any restriction upon evidence should be determined by a trial judge. I decline the defendants' request." 9 It was not necessary at that time further to elaborate but I was then, and I remain, conscious that an appropriate expert may be able to form and express a relevant opinion if that expert were guided to consider the correct issue. It is, however, difficult to perceive that Mr Glendenning, who is an architect, or Mr Dickie who is an accountant would be qualified to give evidence about a difference in property valuation. The same may not apply to Mr Cingiloglu, who is a valuer. Even if he can give such evidence, a report directed to the correct issue needs to be obtained. 10 The apparent efforts by the plaintiffs to circumvent their failure to amend the statement of claim and to continue to pursue claims for damages contemplated by the amendment (despite Mr Barkat's protestations that circumvention is not intended) I consider that the case should be managed by the Court to the extent of obliging the plaintiffs to produce a relevant report from any expert and obtain leave before trial if they intend to adduce evidence in accordance with such a report and they should be restrained from purporting to rely upon the current misdirected material. A formal order to that effect is not sought and I shall not make one, but the plaintiffs should be on notice as to what will be required. 11 The defendants seek leave to file an amended defence. As I understood his submissions, one complaint by Mr Barkat was that the proposed amendment would delete some matters which he would wish to remain in place. The conduct of the litigation by the plaintiffs has obviously left the defendants without a clear exchange upon which issue might be joined. It is desirable that a defence identify, as far as is practical when a defendant is faced with a less than clearly articulated claim, exactly what the defendants desire to contend. The content of their pleading is not a matter for their opponents. It is the practice of the Court liberally to grant amendment in order to seek to achieve a goal of defining the issues and the defendants should be permitted to amend. 12 The plaintiffs seek that the defendants sever and file their lay evidence on or before 16 May. The request is premature, if for no other reason than the deficiency in the provision of particulars by the plaintiffs. It follows that the second prayer to fix a hearing date falls into the same category. 13 On the defendants' notice of motion filed 24 April 2008 I make orders in terms of paragraphs 1, 2, 3 and 4. 14 The plaintiffs' motion filed 1 May 2008 is dismissed. 15 I order the plaintiffs to pay the defendants' costs of the notice of motion of 1 May 2008. 16 The necessity for the defendants to seek the relief specified in their notice of motion was patently provoked by the plaintiffs' attempt to continue to pursue damages calculated in accordance with the amendment to the statement of claim which had been expressly refused. Whether this arose because of a failure to grasp the consequences of the refusal or was an attempt to sidestep them, I do not know, but the actions of the defendants as evidenced in the three letters which have been identified and the continued purported reliance on misdirected expert opinion was deliberate. 17 Therefore I order the plaintiffs to pay the defendants' costs of the notice of motion of 24 April 2008 on an indemnity basis and I give leave to the defendants to enforce that order forthwith. ********** 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.