Stolfa v Owners Strata Plan 4366 & Ors [2008] NSWSC 530

New South Wales Supreme Court

CITATION : Stolfa v Owners Strata Plan 4366 & Ors [2008] NSWSC 530

HEARING DATE(S) : 30 April 2008 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 30 April 2008

DECISION : Leave to amend defence refused.

CATCHWORDS : PROCEDURE – late application for leave to amend defence – leave refused.

CATEGORY : Procedural and other rulings

Veronica & Raffaele Stolfa (plaintiffs) PARTIES : Owners Strata Plan 4366 (first defendant) John Hempton & Joanna Kalowski (second defendants) Stephen Hempton & Tonia Tschanz (third defendants)

FILE NUMBER(S) : SC 4087/07

COUNSEL : Mr M A Ashhurst SC w Mr S T O'Brien (plaintiffs) Mr P W J Gray SC w Ms P E Koroknay (second & third defendants)

SOLICITORS : W G McNally Jones Staff (plaintiffs) David Le Page (second & third defendants)

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

BRERETON J

30 April 2008

4087/07 Veronica & Raffaele Stolfa v Owners Strata Plan 4366 & Ors JUDGMENT (ex tempore) on leave to amend defence; see p 3 of the transcript) 1 HIS HONOUR: These proceedings were set down for hearing as an expedited matter to commence today for two days, at a directions hearing in the Expedition List on Friday 8 February 2008. Amongst the directions made that day were included the following: "8. Note that no party proposes to amend its pleadings save as specified in Schedule 1 below". Schedule 1 provided for an Amended Defence to be filed by 15 February 2008. An Amended Defence was filed in compliance with that provision. 2 Today, the defendants seek leave to further amend the Defence by filing a document entitled Further Amended Defence which adds paragraph 25A to the pleadings. That paragraph, together with the particulars subscribed to it, comprises from page 7.4 to page 10.1 of the document, and sets up for the first time an alternative allegation, to the effect that were the plaintiffs otherwise entitled to succeed, they are nonetheless estopped, from denying that they consented to or approved of the carrying out of the work in "the void", the work on the verandah of lot 3 and the work on the dividing wall within the verandah of lot 3, of which they now complain. 3 The factual material which underlies that allegation is already in evidence, in the form of the affidavits and reports which have been served and exchanged. Mr P W J Gray SC, for the defendants, makes clear that it is not proposed to adduce any additional evidence to support the new defence. Mr M A Ashhurst SC, for the plaintiffs, however, says he is simply unable to tell at this stage whether there is additional material that the plaintiffs would wish to adduce in reply, and further that – while frankly conceding that, in the course of preparation of the matter, the question of an estoppel defence passed through his mind (as indeed it did through mine as I read the papers in preparation for the hearing) – he was then able to dismiss it as not requiring further consideration, and is not prepared at this stage to cross-examine on such issues as reliance and detriment, which would be germane to an estoppel defence. 4 In those circumstances, I simply do not think that it would be just to the plaintiffs to require them to answer a new defence, not previously notified, in an expedited hearing commencing today. It may turn out that no further evidence is required, and it is conceivable that Mr Ashhurst might be in a position before the end of the hearing to cross-examine on the issues which it would raise, or that on closer consideration they might not require any further cross-examination. But the contrary is also possible, and one must bear in mind that what, looked at from the perspective of one party on the first occasion might seem very clear, often turns out on close examination by the other not to be so clear at all. To my mind, it would be unjust to the plaintiffs to require them to meet this proposed new defence today. 5 No explanation as to why the estoppel defence has not been advanced earlier has been offered, save that it only occurred to counsel in the course of final preparation for the hearing. 6 As a matter of balancing prejudice and justice in the context of an expedited hearing, it seems to me that I must refuse leave to amend. 7 I refuse leave to amend the Defence as sought. I will mark and initial the proposed Further Amended Defence for identification and date it this day. **********