Supreme Court New South Wales Medium Neutral Citation: Emerald Civil Engineering Pty Ltd v Hunt [2015] NSWSC 786 Hearing dates: 10 June 2015 Date of orders: 10 June 2015 Decision date: 10 June 2015 Jurisdiction: Common Law Before: Campbell J Decision: Under s 64 Civil Procedure Act 2005 (NSW) and s 38 Civil Liability Act, I grant leave to the plaintiff to file an amended statement of claim joining Remuneration Strategies Group Pty Ltd ACN 095347783 as a defendant. The proposed amended statement of claim, the front page of which is initialled by me, dated today and placed with the papers, is to be further amended in accordance with these reasons. The amended statement of claim is to be filed by close of the Registry on Thursday, 18 June 2015. By close of business today the plaintiff is to provide the defendant's solicitor with a copy of the amended document it proposes to file to enable the solicitor to satisfy himself or herself that the proposed amendment accords with these reasons. In the event of any dispute about whether the proposed amendment accords with these reasons, the parties have liberty to apply on 24 hours' notice, to be exercised by email to my Associate no later than midday 17 June 2015. Costs: That the fourth defendant and the plaintiff bear her and its own costs of the proceedings. That there be no order as to the costs of the plaintiff's motion filed on 10 June 2015. Catchwords: PROCEDURE – civil – parties – joinder – amendment of pleadings Legislation Cited: Civil Liability Act 2002 (NSW); Civil Procedure Act 2005 (NSW); Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: Emerald Civil Engineering Pty Ltd (Plaintiff) David Hunt & 3 others (Defendant) Representation: Counsel: Mr J Stephenson for the Plaintiff/Applicant Mr G Covington (solicitor) for the First to Fourth Defendants/Respondents Solicitors: PLN Australia Pty Ltd (Plaintiff/Applicant) File Number(s): 2014/00370035 EX TeMPORE Judgment (REVISED) 1. This is a claim for professional negligence and for damages under the Australian Consumer Law. The claim relates to the provision of professional services in the nature of tax advice rendered by the defendants to the plaintiff. The financial arrangements which followed from that advice were put into place prior to 30 June 2009. Potentially therefore there is an issue about time expiring against the party who is proposed to be joined as a fifth defendant. 2. By motion filed on 10 June 2015 the plaintiff also seeks leave to effectively remove the fourth defendant as a party. That person is the spouse of another party and who had no active involvement in the professional practice. The other defendants do not object to her removal as a party. 3. The claim may be one to which the provisions of Part 4 Civil Liability Act 2002 (NSW) apply. The defendants have notified the plaintiff that they contend the matter is an apportionable claim and that a company named Remuneration Strategies Group Pty Ltd is a concurrent wrongdoer. Indeed, as I understand the case, it may be that the defendants say that that company is the only entity who rendered any relevant professional services for the purposes of the plaintiff's claim. 4. In any event, in principle, the other defendants do not object to the joinder of that company as an additional defendant. What Mr Covington, solicitor, says is that the proposed pleading in respect of that corporation is deficient when measured by the yardstick provided by Part 14 Uniform Civil Procedure Rules 2005 (NSW). Essentially the argument is that there are simply no material facts averred showing how that company may be liable. 5. Mr Stephenson of counsel who appears for the plaintiff responds that the joinder is essentially defensive, having been notified of the other defendants' attitude, and as time may be about to expire, the expedient of naming the fifth defendant, as it is put, has been adopted. But at this stage given that the plaintiff essentially takes issue with the other defendants about the fifth defendant's role, it is impossible for the plaintiff to responsibly plead a case against it. 6. I understand the position of both parties, especially in respect of a pleading where the rules require verification. However, it seems to me that on balance, there is force in the defendant's argument. There are no averments setting out any case against the fifth defendant. Acquiescence in the filing of a pleading in that form may constitute a waiver of the other defendant's ability to impeach the pleading at a later time, and may lead to a situation where the fifth defendant once joined brings a motion forthwith to have the statement of claim struck out as being non-compliant with the rules. 7. Although it is not the role of the court to correct a party's pleadings as though it were marking their homework, during the course of the discussion with counsel it emerged that having regard to the consideration that the averments are made against each of the other defendants effectively together, the objection raised by them to the proposed amended pleading could be overcome by adoption of the same technique. For example, in [5] of the statement of claim it is alleged that the first, second and third defendants were retained by the plaintiff to provide taxation and accounting advice, inter alia. The defendant's difficulty could possibly be overcome, it is a matter for consideration by the parties, if that averment and the others like it read, "The first, second, third and in the alternative, fifth defendants were retained by the plaintiff to provide taxation and accounting advice". At least then the other defendants and the fifth defendant would know the case that was likely to be advanced at the trial. It would still be appropriate, as the plaintiff seeks to do in paragraphs 36A and 37 of the proposed amendment, to make clear that it is joining the fifth defendant, I will put it this way, "under protest", to avoid the apportionment of any claim it establishes because of the absence of a party who is later adjudged to be a concurrent wrongdoer. 8. For those reasons I make the following orders: 1. Under s 64 Civil Procedure Act 2005 (NSW) and s 38 Civil Liability Act, I grant leave to the plaintiff to file an amended statement of claim joining Remuneration Strategies Group Pty Ltd ACN 095347783 as a defendant. 2. The proposed amended statement of claim, the front page of which is initialled by me, dated today and placed with the papers, is to be further amended in accordance with these reasons. 3. The amended statement of claim is to be filed by close of the Registry on Thursday, 18 June 2015. 4. By close of business today the plaintiff is to provide the defendant's solicitor with a copy of the amended document it proposes to file to enable the solicitor to satisfy himself or herself that the proposed amendment accords with these reasons. 5. In the event of any dispute about whether the proposed amendment accords with these reasons, the parties have liberty to apply on 24 hours' notice, to be exercised by email to my Associate no later than midday 17 June 2015. (For further discussion re costs see separate transcript) 1. Now there are two issues in relation to costs, the first relates to costs of the fourth defendant who will be removed as a party when the amended statement of claim is filed. The second relates to whether the plaintiff should have the costs of its motion seeking leave to join the company who has been referred to as the "fifth defendant" to the proceedings. As far as the first issue is concerned, the parties have agreed that the removal of the fourth defendant should be done on the basis that the fourth defendant and the plaintiff will bear its and her own costs of the proceedings. I will make an order in that regard in a moment. 2. So far as the costs of the motion are concerned, the plaintiff argues that it was necessary to bring the motion and that the plaintiff has been successful in obtaining orders permitting it to file a proposed amended statement of claim. I have used the indefinite article in describing the proposed amended statement of claim because it is not the proposed amended statement of claim as propounded by the plaintiff on the motion. The defendants' position always was that it consented to the joinder of the fifth defendant but objected to the form of pleading which had been propounded for that purpose by the plaintiff. 3. For the reasons I gave earlier in making the orders I have made, disposing of the plaintiff's notice of motion, I think the defendant's objection was well founded and well taken. And although it can be said that the plaintiff has obtained an order in its favour, it has obtained an order in its favour subject only to the force of the argument put forward by the defendants. 4. In those circumstances I think the appropriate approach is that each party bear his or its own costs of the plaintiff's motion. 5. The orders I pronounce accordingly are: 1. That the fourth defendant and the plaintiff bear her and its own costs of the proceedings. 2. That there be no order as to the costs of the plaintiff's motion filed on 10 June 2015. ********** Amendments 18 June 2015 - Hearing date added to cover sheet 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: 18 June 2015