Starwhist Pty Ltd v Tonge (No. 2) [2017] NSWSC 1084

Supreme Court New South Wales

Medium Neutral Citation: Starwhist Pty Ltd v Tonge (No. 2) [2017] NSWSC 1084 Hearing dates: 16 August 2017 Date of orders: 16 August 2017 Decision date: 16 August 2017 Jurisdiction: Common Law Before: Davies J Decision: 1. Orders made in relation to Defendant's proposed amended pleadings. Defendant to serve further form of amended pleadings by close of business on 17 August 2017.

2. Vary order 3 made on 21 July 2017 to provide that the Defendant is to pay the Plaintiff's costs of the Defendant's Notice of Motion filed 13 June 2017. Catchwords: CIVIL PROCEDURE – pleadings – form and content of pleadings - whether pleadings sought to be filed complied with the judgment granting leave to file them – new claim sought to be raised – no reasonable explanation why claim not raised earlier – new claim disallowed Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Starwhist Pty Ltd v Tonge [2017] NSWSC 963 Category: Procedural and other rulings Parties: Starwhist Pty Ltd (Plaintiff) James Malcolm Tonge (Defendant) Representation: Counsel: A Macauley (Plaintiff) M Sneddon (Defendant)

Solicitors: David Legal (Plaintiff) Gillard Consulting Lawyers (Defendant) File Number(s): 2017/63228

Judgment 1. I gave judgment on the Motion by the Defendant for leave to file an amended defence and a cross-claim on 21 July 2017: Starwhist Pty Ltd v Tonge [2017] NSWSC 963. 2. The Defendant has now proffered the proposed amended defence and the cross-claim. The Plaintiff takes issue with two parts of the pleadings. The matters in the cross-claim, effectively, mirror the matters in the Defence in that regard. 3. The Plaintiff says that the pleading contained in paragraphs 25 to 27 of the amended defence represents a new claim that was not argued before me and was not the subject of my judgment. Those paragraphs read as follows: 25. On 13 October 2016, the parties (being the Plaintiff and the Defendant) entered into a deed in respect of the compromise of the Plaintiff's claim against the Defendant as anticipated in the 29 September 2016 Agreement (the 13 October 2016 Deed). Particulars The 13 October 2016 Deed is entitled, "Deed of Settlement and Release" and was signed and dated by the Plaintiff and the Defendant on or about 13 October 2016 following negotiations between the parties. 26. Pursuant to and in accordance with the 13 October 2016 Deed: (a) the Plaintiff agreed to forthwith sign and deliver into escrow certain documents in registrable form (the "Discharge Documents") to the Plaintiff's solicitor, Fred David, as its agent pending deliver to the Defendant at settlement being: (i) a Discharge of Mortgage (form 05DM) – dealing number AF913859M; (ii) a Transfer of Mortgage (form 01TL) – dealing number AF913859M; (iii) a Discharge of Mortgage (form W-05DM) – dealing number AF975189P; (iv) a Transfer of Mortgage (form W-01TM) – dealing number AF975189P; and (v) a Discharge of charge (and associated PPSR forms). (clauses 4, 5 and 6); (b) the Plaintiff agreed to forthwith provide a copy of the Discharge Documents to the Defendant (clause 5). 27. By reason of the matters pleaded in paragraphs 25 and 26 above, the Defendant denies that the Plaintiff was entitled to demand completion on 31 October, 2016, by reason of the fact that the Plaintiff was not itself ready, willing and able as required under the 13 October 2016 Deed. Particulars At least 14 days prior to 31 October, 2016 (or at all), the Plaintiff did not: (a) sign and deliver into escrow to be held by its solicitor pending settlement (clauses 4, 5 and 6 of the 13 October 2016 deed) (b) provide a copy to the Defendant (clause 5 of the 13 October 2016 deed) of the Discharge Documents. 1. Mr Sneddon, of counsel for the Defendant, accepts that that is a new claim, but says it arises from the fact that the executed form of the deed by the Plaintiff was not made available to the Defendant until 5 July; that was two days before I heard the Motion. The only reason put forward to explain why the cause of action in paragraphs 25 to 27 was not contained in the amended defence and cross-claim put forward was "other things were on our minds in relation to the day of the motion". I took that to mean that it did not occur to those acting for the Defendant until a later time. 2. The chronology is relevant. The affidavit annexing the signed copy of the deed by the Plaintiff was served on 5 July. The Motions were argued on 7 July. I gave judgment on 21 July and the first time this new cause of action has been put forward was subsequent to my judgment. I had, in fact, directed that the amended form of the defence and the cross-claim were to be provided within 14 days. That was not done. 3. The form that is sought to be relied upon was e-mailed to my Associate at 5.57pm last night. I assume it was delivered to the Plaintiff's solicitor a little before that time, but, judging by the email chain that my Associate was copied in on, very little time was given to the Plaintiff's solicitor to consider this form of the documents. 4. No proper reason has been put forward to explain why the cause of action in paragraphs 25 to 27 was not raised, or notified at an earlier time. The Defendant had two days before the hearing of the Motion to consider the matter. The Defendant could, after I had reserved judgment, have sought to reopen the matter to raise it in the two week period it took me to deliver judgment. The Defendant could also have raised the matter after I delivered judgment and considerably before the time that it was raised. 5. To some extent, what was permitted to be put forward by me in my judgment of 21 July 2017 was an indulgence to the Defendant when all of these matters should have been raised at an earlier time. 6. Bearing in mind ss 56 to 58 of the Civil Procedure Act 2005 (NSW), I do not consider that the Defendant should now be permitted to rely on paragraphs 25 to 27 of the amended defence. Those paragraphs are mirrored in paragraphs 8 to 10 of the proposed cross-claim. 7. Counsel for the Plaintiff has submitted that if those paragraphs are omitted from the cross-claim, that will have a bearing on the relief claimed in the cross-claim, particularly, paragraphs 4 to 6. I have not closely examined those paragraphs, to know if that is correct. That is something that the Defendant will have to take on board in proffering the further forms of these pleadings. 8. The Plaintiff has drawn my attention to the order I made dismissing the Defendant's notice of motion filed 13 June 2017 and making no order as to costs. The Plaintiff submitted that the form of the cross-claim sought to be filed in that notice of motion differed significantly from what was thereafter put forward in the Defendant's Notice of Motion filed 21 June 2017. 9. I accept that the order I made that there be no order as to costs of the motion of 13 June 2017 was based on a misconception that this earlier motion sought only to file a cross-claim in the same form as that put forward in the motion of 21 June 2017. I consider that the order I made should be corrected under the slip rule. 10. I will vary order 3 that I made on 21 July to provide that the Defendant's Notice of Motion filed 13 June 2017 is dismissed and the Defendant is to pay the Plaintiff's costs of that Motion.