Airport City Hotels Services Pty Ltd v Grand National Concierge Pty Ltd [2014] NSWDC 168

District Court New South Wales

Medium Neutral Citation: Airport City Hotels Services Pty Ltd v Grand National Concierge Pty Ltd [2014] NSWDC 168 Hearing dates: 3 October 2014 Decision date: 08 October 2014 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Leave granted to the defendant to file the amended defence in the form tendered. (2) Defendant to pay any costs thrown away by reason of the late application, including the costs of the application to amend. (3) Note that the matter is stood over to 2pm on Thursday, 9 October 2014 for conclusion of submissions, and for orders or directions in respect of the advertising agreement defence. Catchwords: PROCEDURE - pleadings - application to amend defence to rely on an agreement - agreement already in evidence - dispute about whether agreement performed - amendment allowed Category: Interlocutory applications Parties: Airport City Hotels Services Pty Ltd (plaintiff/second cross-defendant) Grand National Concierge Pty Ltd (defendant/cross-claimant) Raquel Barkho (first cross-defendant) Representation: Mr P Finch (plaintiff/second cross-defendant and first cross-defendant) Mr A Radojev (defendant/cross-claimant) Bryan Killalea (defendant/cross-claimant) File Number(s): 2012/208845 Publication restriction: None

Judgment 1Airport City Hotels Services Pty Limited ("Sydney Shuttle") claims it entered a service agreement with Grand National Concierge Pty Limited ("National Concierge"), whereby National Concierge sold tickets to persons seeking rides on shuttle buses. Sydney Shuttle supplied the rides. National Concierge agreed to remit a percentage of the sale price to Sydney Shuttle. 2Sydney Shuttle sued National Concierge for failing to remit the proper amount of money. The trial of the matter has almost concluded. 3At the commencement of submissions in reply, National Concierge sought to amend its defence to rely on two advertising agreements with Sydney Shuttle. National Concierge contended that some of the monies it retained - a relatively small amount - were owing to it under the advertising agreements. Evidence admitted without objection, although arguably relevant to other issues in the proceedings, indicated that there was no dispute about the existence of at least one of the advertising agreements, wherein moneys were to be paid by Sydney Shuttle in return for certain services supplied by National Concierge. There is also some evidence that National Concierge supplied some services. 4Sydney Shuttle opposes leave being granted. It says that it has had no opportunity to lead evidence to the effect that National Concierge did not fulfil the advertising agreements by supplying the required services. It says that this evidence might establish that National Concierge had no entitlement to payment, or to retain funds, under the advertising agreements. 5National Concierge offers little explanation for this matter not being pleaded earlier. However, I have decided that I should allow the amendment to be made. As I state above, there is evidence indicating an entitlement in National Concierge to be paid monies under the advertising agreements. Further, allowing the amendment will allow all the issues to be ventilated and resolved in the one proceeding (noting that the parties concede that, absent an amendment, these proceedings would not bar the ventilation elsewhere of issues concerning the advertising agreements). 6However, in fairness, the plaintiff, Sydney Shuttle, must have an opportunity to lead evidence on the question of whether National Concierge has fulfilled its obligations and thus has become entitled to payment. 7As the amount of monies retained by National Concierge on the basis of the advertising agreements is relatively modest, the result in the proceedings should not await the result of this lately raised issue. I propose to determine the amount to which Sydney Shuttle or National Concierge is entitled in the proceedings, and also to determine the amount to which National Concierge might be entitled pursuant to the advertising agreements. I propose to reserve the question of the funds to which National Concierge is entitled under the advertising agreements until the plaintiff has had an opportunity to lead evidence, if it so chooses, on that matter. 8There may be a need to make orders to reflect the circumstance that a part of the proceedings remains to be resolved. One way may be to order that the question of the extent to which National Concierge has fulfilled the advertising agreements and become entitled to payments under the advertising agreements shall be determined as a separate question after the determination of the residue of the proceedings. I will hear the parties on that matter. 9The orders of the Court are: (1)Leave granted to the defendant to file the amended defence in the form tendered. (2)Defendant to pay any costs thrown away by reason of the late application, including the costs of the application to amend. (3)Note that the matter is stood over to 2pm on Thursday, 9 October 2014 for conclusion of submissions, and for orders or directions in respect of the advertising agreement defence.