Supreme Court New South Wales Medium Neutral Citation: Kaji Australia Pty Ltd v Glover [2017] NSWSC 120 Hearing dates: 20 February 2017 Decision date: 20 February 2017 Jurisdiction: Common Law Before: McCallum J Decision: Leave granted to cross-claimant to file in court amended first cross-claim; defendant to pay the plaintiffs' costs thrown away by reason of the amendment; costs of hearing on 17 February 2017 and today to be the plaintiffs' costs in the cause Catchwords: PROCEDURE – application to amend cross claim to add new parties – where no hearing date fixed – potential delay ameliorated by serendipity Category: Procedural and other rulings Parties: Kaji Australia Pty Ltd (first plaintiff/first cross-defendant) William Bradley Webster (second plaintiff/second cross-defendant) Johann Benson Glover (defendant/cross-claimant) Representation: Counsel: P Folino-Gallo (plaintiffs/cross-defendants) R Newell (defendant/cross-claimant) Solicitors: Julian McVittie Shields Lawyers (plaintiffs/cross-defendants) L.C. Muriniti & Associates (defendant/cross-claimant) File Number(s): 2014/105767 Judgment 1. HER HONOUR: Before the Court is an application by the defendant to the proceedings to amend his cross-claim. The effect of the amendment would be to add three new parties to the proceedings. 2. The position taken by the plaintiffs in respect of the application is that it is not necessary for the Court to concern itself so much with the content of the proposed amendment as with the effect it will have on the proceedings. 3. The proceedings are for possession. The proposed amendment will introduce two parties who acted in the role of mortgage-broker (an individual and a company) and a third who acted in the role, as it was termed by the solicitor for the plaintiffs, of "introducer" to the mortgage-broker. 4. Mr Folino-Gallo, who appears for the plaintiffs, submitted that the amendment should be rejected for two principal reasons, one being its lateness and the other, as a related consideration, being the delay it will generate in obtaining a hearing date. 5. The present status of the proceedings is that some evidence has been exchanged; the defendant has missed a deadline for the service of further lay evidence and the proceedings have not yet been allocated a hearing date. 6. The lateness of the proposed amendment is unfortunate but, in my view, is adequately explained in the affidavit of Mr Leonardo Muriniti sworn 17 February 2017. Ordinarily, the delay that would inevitably follow upon the joinder of new parties to proceedings would be a concern. However, in the present case, ironically (and serendipitously), the effect of the bringing of the application has been to draw to the attention of the Possession List Judge, Davies J, who happened to be the Duty Judge when the application first came before the Court last Friday, the fact that this Possession List matter, which plainly calls for case management, had slipped through that net and has not, to date, been case-managed. In the result, if the proceedings are referred to his Honour for case management, any delay generated by the joinder of the new parties will probably be ameliorated by the efficiency of the case management in that list. 7. A further consideration is that, although I have not considered the proposed amendment in detail, it appears on its face, from what I have read, assuming in favour of the cross-claimant that the matters pleaded can be proved, to raise a respectable claim and one which, having regard to the interests of fairness, ought probably to be determined together with the plaintiffs' claim. 8. There is a concern as to the erosion of the equity in the security property. Mr Folino-Gallo very appropriately did not seek to give evidence of any figures from the Bar table. He did, however, indicate that the concern as to the risk of complete erosion of the equity before a hearing date if one is allocated towards the end of this year proceeds on an assumption of the current interest rate being adopted in the calculation. That interest rate will, undoubtedly, be one of the issues considered in the proceedings, being 36 per cent per annum at the lower rate and 60 per cent per annum if a penalty rate is applied. 9. Having regard to all of the matters put before me this morning, I am persuaded that it is appropriate to grant leave to file the amended cross-claim. 10. The parties were in dispute as to the appropriate costs order in the circumstances. Plainly, the plaintiffs should have their costs thrown away by reason of the amendment. Mr Folino-Gallo also submitted that the Court should order the defendant to pay the plaintiffs' costs of the hearing last Friday and today. In my view, the appropriate order is that those costs should be the plaintiffs' costs in the cause. 11. I make the following orders: 1. Grant leave to the cross-claimant to file in court the amended first cross-claim. 2. Order the defendant to pay the plaintiffs' costs thrown away by reason of the amendment. 3. Order that the costs of hearing on Friday, 17 February 2017 and today be the plaintiffs' costs in the cause. ********* 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: 23 February 2017