Supreme Court New South Wales Medium Neutral Citation: Greer v Pickering [2015] NSWSC 1039 Hearing dates: 28 July 2015 Date of orders: 29 July 2015 Decision date: 29 July 2015 Jurisdiction: Common Law Before: Harrison J Decision: (1) Subject to order (2), I grant liberty to the plaintiff to amend her current pleading in the form of the proposed second further amended statement of claim, which for identification I have initialled, dated 29 July 2015, and placed with the papers. (2) Order (1) does not extend to or permit the proposed deletion of paragraphs 1 to 13 inclusive of the further amended statement of claim. (3) Order the plaintiff to pay the costs of and incidental to the amendment, including the costs of the hearing before me on 28 July 2015. (4) Grant liberty to the parties to apply on 24 hours' notice to me by arrangement with my Associate. Catchwords: PLEADINGS – amendment to pleadings – late application to amend – no procedural or forensic disadvantage to the second defendant Category: Procedural and other rulings Parties: Annette Greer (Plaintiff) Garry Pickering (Defendant) Representation: Counsel: J McDonald (Plaintiff) A Zahra (Defendant) Solicitors: Marsden Law Group (Plaintiff) Sparke Helmore (Defendant) File Number(s): 2013/326348 Publication restriction: Nil Judgment 1. HIS HONOUR: These proceedings are listed for hearing commencing on 4 August 2015 with an estimate of two days. 2. The plaintiff sues the second defendant alleging negligence and breach of retainer by him as her solicitor in the course of acting for her on the purchase of a property at Greenfield Park from the first defendant in 2009. The plaintiff alleges that the second defendant failed properly to document the transaction which was intended to give the first defendant limited rights to remain in occupation of the property until his death but otherwise upon and subject to certain conditions. In the events that occurred, the first defendant remained in possession of the property until December 2014, and well beyond what the plaintiff contends was his entitlement. She alleges that that was the direct result of the second defendant's failure to prepare the contract special conditions in accordance with her instructions. In the circumstances it was necessary for the plaintiff to commence these proceedings against the first defendant seeking to recover possession. That part of the case has now settled. All that remains is the plaintiff's claim for damages consisting of the costs of these proceedings against the first defendant and losses associated with the first defendant's extended time in possession. 3. The plaintiff wishes to amend her current pleading and to file what would be a second further amended statement of claim. The purpose of the proposed amendment is to regularise the state of her pleadings in the light of the settlement of the case against the first defendant. The amendment does not propound a different case or add additional causes of action. The facts that underpin the plaintiff's claim will be different only to the extent that what was hypothetical for as long as the first defendant remained in occupation of the property and an active party to these proceedings is now no longer hypothetical. The previously uncertain prospect that the first defendant may have been able somehow successfully to defend the plaintiff's claim against him has now evaporated. 4. The second defendant opposed the application on a number of bases. That opposition was normal and natural having regard to the slightly daunting form of the proposed second further amended statement of claim on the one hand and the prospect that it was or may have been a stalking horse for a reformulated case on the other hand. On examination during the hearing of the application, those fears would appear to have been calmed. The burden of the plaintiff's application when properly understood is procedural and not forensic and the conduct and understanding of the plaintiff's case at trial is likely to be enhanced from all perspectives if the amendments are allowed. 5. The second defendant was however concerned that the proposed amendment deleted entirely the pleading directed to the case against the first defendant. That was because the second defendant had quite properly taken the opportunity when formulating his current defence to utilise references to some of the matters alleged against the first defendant and to incorporate them in his pleading. The second defendant not unnaturally takes exception to the prospect that there could be any forensic disadvantage to him if the proposed amendments destroyed or limited his ability to continue to incorporate these references to the case pleaded against the first defendant. That was quite apart from the related concern that any amended defence would be administratively easier to prepare if the amended document did not delete all reference to the paragraphs that formulated the plaintiff's case against the first defendant. 6. There is no doubt that these amendments could and should have been made well before now. The first defendant has been gone from the property since December last year and nothing significant has changed since then. His departure is the catalyst for the amendments. It is not in my view unreasonable for the second defendant to have taken the position he did in opposition to the application when the first notice of the proposal was only given to him last week. Although I perceived a significant relaxation in the second defendant's camp when the real objectives of the amendment were revealed in Court before me, more notice of the proposed amendments would obviously have given him a better and calmer opportunity to consider his position and would in all likelihood have generated a less combative response. 7. I consider that the proposed amendment will greatly assist the trial judge in his or her understanding of the plaintiff's case, and may well be productive of other efficiencies as well. The plaintiff should be granted liberty to amend the current statement of claim in the form proposed, with the exception of the deletion of the paragraphs pleaded against the first defendant. However, the need for the hearing before me in order to get to the bottom of the matter is the direct result of the plaintiff's egregiously late application to amend. The amendments have therefore come at a cost that could and should have been avoided by much earlier attention to the issue. I consider that the plaintiff should in the circumstances pay the second defendant's costs of the proposed amendments including the costs of and incidental to yesterday's hearing. 8. I will make the following orders: 1. Subject to order (2), I grant liberty to the plaintiff to amend her current pleading in the form of the proposed second further amended statement of claim, which for identification I have initialled, dated 29 July 2015, and placed with the papers. 2. Order (1) does not extend to or permit the proposed deletion of paragraphs 1 to 13 inclusive of the further amended statement of claim. 3. I order the plaintiff to pay the costs of and incidental to the amendment, including the costs of the hearing before me on 28 July 2015. 4. I grant liberty to the parties to apply on 24 hours' notice to me by arrangement with my Associate. ********** 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: 29 July 2015