Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Boele v Rinbac Pty Ltd [2014] NSWCA 277 Hearing dates: 18 August 2014 Decision date: 18 August 2014 Before: Leeming JA Decision: 1. Dismiss the notice of motion filed 23 June 2014, with costs. 2. The first respondent file and serve, if it so wishes, submissions directed to why the costs the subject of Order 1 not be quantified in the amount of $2,900 exclusive of GST, within seven days of today. 3. I note that in light of any submissions received by the first respondent pursuant to Order 2, I will determine, shortly after seven days from today, whether to quantify the costs order, and if so, in the amount of $2,900 or some lesser amount on the papers and advise the parties thereafter. 4. Direct the applicant within 7 days of today to file and serve a further amended summons in the form which has been debated before me today. 5. Direct Mr Deren Hassan to advise the instructing officer or officers of his client Rinbac of the obligations to which they are subject under s 56(3) and (4) within 7 days of today and in writing. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: Practice and procedure - leave to amend - draft amended summons served after submissions filed - objections to amendments to be determine in light of submissions - costs - seeming non-compliance with Civil Procedure Act 2005 (NSW), s 56 Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 67 Uniform Civil Procedures Rules 2005 (NSW), r 59.4(b) Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Category: Interlocutory applications Parties: Pieter Boele (Applicant) Rinbac Pty Ltd (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: D Nagle (Applicant) M Allars SC with G Lucarelli (First Respondent) Solicitors: Platinum Lawyers (Applicant) Landerer & Company (First Respondent) File Number(s): 2014/135146 Decision under appeal Citation: [2014] NSWDC 111 Date of Decision: 2014-03-21 00:00:00 Before: Cogswell SC DCJ File Number(s): DC 2013/00276281 Judgment 1This proceeding in the Court's supervisory jurisdiction came before me on 21 July 2014, when the principal matter for determination was the first respondent's claim that the existing interlocutory regime be varied because there had been a material change of circumstance. The first respondent also claimed that there was non-conformity between an agreement reflected in orders made by the Registrar as to the amendment of the applicant's summons, and the amended summons which had been filed. The first respondent was substantially unsuccessful. It failed in its application to vary the interlocutory regime. I was not satisfied that there had been shown to have been a material change in circumstances. 2However, without prejudice to his position that it was unnecessary to do so, the applicant undertook to provide a further amended summons. I gave directions for the service of a proposed further amended summons by the applicant, for the first respondent to notify whether it objected, and for the parties to supply, in the event of dispute, short written submissions on the question of leave to amend and costs. (Neither party sought reasons for those orders, which were made immediately after a hearing which concluded after 5pm.) 3Substantially in accordance with that regime, the applicant has served a proposed further amended summons. The first respondent opposed leave being granted to file it, said that the proceedings should be dismissed, sought an order of costs in its favour including on an indemnity basis, and sought to be heard orally. The first respondent has now retained senior counsel, who had not appeared on 21 July. The first available date is today. In order to determine whether leave to amend be granted, I note that the applicant has already filed and served written submissions developing the alleged jurisdictional errors made by the District Court hearing an appeal from the (former) Consumer Trader and Tenancy Tribunal. I have been told that those submissions are in final form and are proposed to be relied upon when and if the summons is heard and determined by this Court. It is also common ground that there is a low threshold applicable to the application opposing leave to amend. Essentially, the onus lies upon the first respondent to persuade me that the amendments are bad in law or otherwise embarrassing in the sense described in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 such that they should not be permitted to proceed. 4The first ground of objection is that it is said there is non-compliance with Uniform Civil Procedure Rules 2005 (NSW) r 59.4(b)(i) and (ii) to state the identity of the decision maker and the terms of the decision to be reviewed. That is not so. The substantive orders are confined to orders quashing the orders made by the District Court and remitting the matter to the District Court to be determined in accordance with law. It is true that there is reference to the Tribunal in the "Details of Decision" section of the summons. However, any ambiguity there is resolved not merely by the terms of the orders sought, but also by the grounds which are identified as follows: "1 The District Court committed the following jurisdictional errors: a. by not having regard to the purpose of the Retirement Villages Act 1999 in its application of s 134 of the Act. b. by failing to properly apply the provisions of s 134(3)(a) by failing to consider the relevant circumstances when terminating the lease, c. by failing to consider and determine the critical matters advanced by the applicant to the applicant's case when determining whether the lease should be terminated. d. by failing to have regard to material facts upon which the jurisdiction was purportedly exercised." 5The second objection is that it is said that there is non-compliance with UCPR r 59.4(b)(iii), in that it is said that the document fails to state whether relief is sought of the whole or part of the Court's decision. It is plain that there is nothing in this ground. The substance of the proposed summons is that it seeks to set aside the whole of the orders made by the District Court. 6The third objection is an asserted non-compliance with UCPR r 59.4(c) to state "with specificity" the grounds on which relief is sought. Even if (which I do not need to decide) there is any failure in this respect, the first respondent has (and has had for some little time) the benefit of written submissions identifying how the applicant puts his case. The first respondent wishes to proceed on the basis that the proposed further amended summons should be assessed in isolation. It would be wrong for me to proceed on that basis, where the further amended summons only came into existence by reason of the debate on 21 July, which turned on the written submissions of the applicant (which have been tendered). For example, it is complained that proposed ground 1(b) "fails to specify what 'relevant circumstance' the District Court allegedly failed to consider". That is done, with ample specificity, in paragraph 26 of the written submissions, identifying six particular matters at a level of detail. There is no basis for requiring the further amended summons to reproduce under ground 1(b) the particular circumstances identified in paragraphs 26(a)-(f). Conspicuous by its absence from the first respondent's written submissions is any reliance upon (or even reference to) the applicant's written submissions which were debated before me on 21 July 2014. 7Section 56 of the Civil Procedure Act 2005 (NSW) requires me to have regard to the written submissions as well as the proposed further amended summons in order to identify the real issues in the proceedings. The real issues are not determined by focussing exclusively upon the draft summons and ignoring the much more detailed articulation of how the applicant's case is to be put. 8To similar effect, it is said by the first respondent that both proposed grounds 1(c) and (d) fail to "give any inkling" as to the critical matters advanced by the applicant or the material facts upon which the jurisdiction was purportedly exercised. It is quite possibly true that there is a measure of overlap between proposed grounds 1(b), (c) and (d), but that is no reason to prevent the amendment. There is no suggestion by the first respondent that it is unable to comprehend the argument advanced in the applicant's submissions as opposed to the proposed summons. 9By its fourth objection the first respondent submits that some of the grounds misconceive the nature of the appellate jurisdiction exercised by the District Court pursuant to s 67 of the (former) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). However, it is far from clear to me that that complaint is made out. It may or may not be made out when there is a final hearing, but it is not appropriate for me to go further than I have already at this stage. 10I will grant leave to the applicant to file the further amended summons in the form which has been debated before me today. 11On the question of costs, I am dealing principally with the costs of the first respondent's motion filed 23 June 2014 which was debated before me on 21 July and stood over until today. The first respondent seeks an order that the applicant pay its costs of and occasioned by the amendments on an indemnity basis. In part (but it was confirmed that this was only a very small part), it relies upon the fact that the proposed further amended summons were served on 29 July 2014, rather than 28 July 2014 in accordance with my direction. Otherwise, it reiterates the complaints as to the form of the further amended summons, which I have rejected above. 12There is no basis for an indemnity costs order against the applicant. Even if the entirety of the first respondent's complaints had been established, that would not sustain an order for costs on an indemnity basis. But the fact of the matter is that the first respondent has substantially failed in respect of all of the matters it has put forward, and on two occasions now. 13This proceeding has some troubling features. There have been two hearings now before me, both urged by the first respondent, in respect of which the complaints advanced by the first respondent have been substantially or wholly without merit. There have been at least three appearances before the Registrar. Further, it seems quite likely that the time occupied to date on interlocutory disputation may exceed that involved in the final hearing of the summons. 14As presently advised, I fail to see how both s 56(3) and (4) have been complied with by all of Rinbac Pty Ltd and its lawyers. I believe the lawyers are aware of their obligations under s 56(4). I direct Mr Deren Hassan to advise the instructing officer of his client Rinbac of the obligations to which they are subject under s 56(3) and (4) within 7 days of today and in writing. I note that Mr Hassan is not present in court, nor is Mr Lucarelli. Ms Allars, I will have to ask you to notify your junior or your instructing solicitor to do that. 15The notice of motion filed 23 June 2014 is dismissed with costs. The intention of that order is that to the extent that there are costs occasioned by the amendments which fall outside the costs of the motion, they will be costs in the proceedings. 16[Further discussion about times and costs.] 17I will make the following further directions: 2. The first respondent file and serve, if it so wishes, submissions directed to why the costs the subject of Order 1 not be quantified in the amount of $2,900 exclusive of GST, within seven days of today. 3. I note that in light of any submissions received by the first respondent pursuant to (2), I will determine, shortly after seven days from today, whether to quantify the costs order, and if so, in the amount of $2,900 or some lesser amount on the papers and advise the parties thereafter. 4. Direct the applicant within seven days of today to file and serve a further amended summons in the form which has been debated before me. ********** 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. Decision last updated: 22 August 2014