RELIANCE FINANCIAL SERVICES NSW PTY LIMITED v SOBBI & ANOR [2009] NSWSC 1375

New South Wales Supreme Court

CITATION : RELIANCE FINANCIAL SERVICES NSW PTY LIMITED v SOBBI & ANOR [2009] NSWSC 1375

HEARING DATE(S) : 28, 29, 30 September, 1, 2 October, 18, 19 November 2009

JUDGMENT DATE : 10 December 2009

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

DECISION : I grant leave to the defendants to amend the cross-claim in terms of paragraphs 6(h)(iv) and 6(k)(vi), (vii) (viii), (ix) and (x) of the Second Further Amended Cross-Claim (MFI 18). I refuse leave to the defendants to adduce evidence on the matters that are the subject of paragraphs 54 to 122 of Alan Sobbi's affidavit sworn 12 November 2009.

CATCHWORDS : AMENDMENT TO PLEADINGS – Application to amend Cross-Claim by guarantors (defendants) against lenders/mortgagees (cross-defendants) – issue as to whether the cross-claimant guarantors were to receive the benefit of the loan – relevant to relief sought under Contracts Review Act 1980 – true purpose of loan sought to be raised under proposed amendments – contrary to purpose disclosed in principal affidavit of first cross-claimant – APPLICATION RE EVIDENCE – to adduce new or additional evidence to explain circumstances in which a contrary or contradictory version as to the purpose of the loan was given by first cross-claimant in unrelated proceedings at an earlier time – issues of delay and need to recall witnesses and likelihood of a prolonged hearing resulting – application refused – principles enunciated in Aon Risk Services Australia Limited v Australian National University applied – EVIDENCE – whether certificate under s.128, Evidence Act 1995 may be given where potentially incriminating evidence sought to be led in cross-examination or re-examination – whether such evidence can be considered to be given under objection or willingly by the witness – held a s.128 certificate may not be given with respect to such evidence as foreshadowed on the application for leave