Proactive Management Specialists Pty Ltd v Over Fifty Funds Capital Ltd [2008] NSWSC 82

New South Wales Supreme Court

CITATION : Proactive Management Specialists Pty Ltd v Over Fifty Funds Capital Ltd [2008] NSWSC 82

HEARING DATE(S) : 8 February 2008

JUDGMENT DATE : 8 February 2008

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : First and third defendants to pay plaintiffs' costs of abandoned applications to amend.

CATCHWORDS : PROCEDURE [552] – Costs – Jurisdiction – Other cases – Costs of interlocutory proceedings – Where applications abandoned – Late and repeated applications for amendment.

CATEGORY : Procedural and other rulings

Proactive Management Specialists Pty Ltd (P1) Larvine Pty Ltd (P2) Ricvale Holdings Pty Ltd (P3) Galewood Pty Ltd (P4) Konstan (Administration) Pty Ltd (P5) PARTIES : Tony Rallis (P6) Nickie Rallis (P7) Simon Konstantinidis (P8) Vicki Konstantinidis (P9) Over Fifty Funds Capital Limited (D1) Blueprint Property Developments Pty Ltd (D2) Over 50s Mutual Friendly Society Limited (D3)

FILE NUMBER(S) : SC 1581/07

D H Murr SC and M K Condon (Ps) COUNSEL : M J Dawson (D1 & 3) No appearance (D2)

J S Pinto & Co Solicitors (Ps) SOLICITORS : TressCox Lawyers (D1 & 3) John Dowling Solicitor (D2)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 8 FEBRUARY 2008

1581/07 PROACTIVE MANAGEMENT SPECIALISTS PTY LIMITED & ORS v OVER FIFTY FUNDS CAPITAL LIMITED & ORS 5638/07 PROACTIVE MANAGEMENT SPECIALISTS PTY LIMITED & ORS v OVER FIFTY FUNDS CAPITAL LIMITED & ORS JUDGMENT 1 HIS HONOUR: Part of what I have been dealing with today is further applications by motions filed on behalf of the first and third defendants on 21 December 2007 for amendments to their defences in the proceedings. The amendments now sought are in similar terms to amendments that were sought and refused by me during the earlier course of the trial on 12 December 2007. 2 I have not wound up having to determine the motions. What has happened is that during the course of discussion of them, it has become plain that the fixture for further hearing of the proceedings on 25 to 29 February and on 19 and 20 March 2008, which is contemplated that I should make, would have to be given up if the motions were successful. The reason for that is that, if they were successful, the plaintiffs would seek to join Mr Robinson as an additional defendant and, furthermore, there would be further preparation necessary, perhaps by way of evidence, further discovery and interrogatories relating to the issue of Mr Robinson's authority. Mr Murr, of Senior Counsel for the plaintiffs, says that he is firmly of the view that it is most unlikely that these matters could be encompassed so that the matter would be ready for the trial to continue on 25 February. As well as accepting Mr Murr's word as responsible Senior Counsel, I must say that I have substantial fears based on my own experience that what he says is correct. 3 Upon my informing Mr Dawson, of counsel for the first and third defendants, that the success of his motions would in my view necessitate the loss of the proposed February and March fixtures, leaving the matter to proceed in August, he has on instructions withdrawn the applications. 4 The question of the costs of the motion now arises. I have already indicated that the matters were in the list today not only for the first and third defendants' motions, but also for determination of days to be fixed for the continued hearing of the matters. The necessity for this arises from the fact of a double booking, for which I am afraid I bear some responsibility, in the Court's diary in relation to the continuation of the trial. This is a matter that has been the subject of debate in Court and discussion with counsel out of Court during the course of this morning and the future course of the matter has been shaped as a result of those discussions. Furthermore, now that it is clear on what days the trial will continue, there are directions to be given for the further conduct of the proceedings. 5 Mr Dawson has resisted the making of orders for costs against the first and third defendants in respect of their motions, on various bases. It has not been determined whether or not the motions, if pressed, would succeed. However, I am clear what should occur about the costs of the motions since, even if the motions were successful, it is my view that the first and third defendants would be ordered to pay the costs of the motion, as being very late motions to effect amendments. It was laid before me on the first and third defendants' behalf that they had raised in a written submission in the middle of last year the point which was sought this morning to be incorporated in the pleadings. However, they made no application in relation to this before they made an application during the trial which was unsuccessful and which has now been repeated in the subject motions before me. Even if the motions were successful I am clearly of the view that the first and third defendants would be ordered to pay the plaintiffs' costs of the motions. That is therefore the order that will be made now the motions are disposed of as I have indicated. 6 However, as I have already indicated in these reasons, the motions were not the only reason the matter was before the Court today and they are not the only subject matter dealt with today. The costs of the motions as ordered against the first and third defendants will therefore not include all the costs of today. How those costs should be divided will be, if not able to be agreed, a matter for a costs assessor to disentangle on a later occasion. 7 When I dealt with the earlier application relating to defences in similar form on 12 December 2007, I indicated that I should receive the defences as put forward by the first and third defendants with the proposed amendment to paragraph 8 excised and also with paragraph 17(e) excised from each of the defences. There is one additional excision which should be made which I inadvertently omitted on that occasion. Since the amendments proposed to paragraph 11(b) and (c) in each defence were associated with the paragraph 17 amendment that was sought, they ought also be removed from the amended defences as filed, so that those subparagraphs remain as they are at the present time. The defences as brought forward for filing should assume the form indicated by me on 12 December with the added excision that I have just mentioned. 8 I now propose to specially fix the matters for trial on 25 to 29 February and 19 and 20 March 2008. I vacate the dates which I previously fixed in August for the continuation of the matters.