Vercorp Pty Ltd & Anor v ACN 096 278 483 Pty Ltd
[2010] QSC 334
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Vercorp Pty Ltd & Anor v ACN 096 278 483 Pty Ltd[2010] QSC 334
- Add to List
Vercorp Pty Ltd & Anor v ACN 096 278 483 Pty Ltd[2010] QSC 334
Vercorp Pty Ltd & Anor v ACN 096 278 483 Pty Ltd[2010] QSC 334
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 8 September 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 September 2010 |
JUDGE: | McMurdo J |
ORDER: |
|
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – AMENDMENT – where no new Defence may be filed without leave – where the Respondent seeks leave to file a further Defence and Counterclaim – where the trial is to commence on 27 September – whether the proposed amendments should be allowed. PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – TRANSFERS AND CONSOLIDATIONS – where District Court proceedings were commenced in 2001 and were overtaken by these proceedings which were commenced in 2004 – whether the District Court proceedings should be transferred to this Court and heard with this matter in the forthcoming trial. |
COUNSEL: | D R Cooper SC and C L Francis for the applicants A J H Morris QC and M R Jurth for the respondent |
SOLICITORS: | Hynes Lawyers for the applicants Londy Lawyers for the respondent |
[1] On 20 May 2010, I ordered that Defences filed on 14 April and 17 May 2010 be disallowed and that no new Defence be filed without leave. In consequence, the current Defence is that filed on 13 January 2009. The Respondent to these proceedings now seeks leave to file a further Defence and Counterclaim, although the trial is to commence on 27 September. The Applicants in the principal proceedings oppose the grant of leave. Further, there is an application by them to transfer proceedings from the District Court to be heard with these proceedings in the forthcoming trial. That was opposed and ultimately it was not pursued by the Applicants.
[2] The submissions for the Applicants are strongly critical of the Respondent’s attempts to plead its case throughout this litigation. It is unnecessary to detail that history. It is sufficient to say that the Respondent’s conduct in that respect falls well short of what is now required of litigants and in particular within proceedings upon this list. But of itself that is not an answer to the application for leave to deliver this proposed Defence and Counterclaim. What must be determined is whether in the interests of justice each of the proposed amendments should be allowed, having regard to the circumstance that the trial will commence within a few weeks and that no issue should be raised by an amendment if there is a real prospect that the trial would be delayed or that the Applicants would not be in a position to meet the new case within that time.
[3] Many of the amendments raise defences which will involve purely legal issues. They will add to the length of the trial but not to the extent that the trial should not be completed within the time which has been allocated. Counsel for the Applicants opposed at least some of the amendments in that category upon the basis that the proposed defence is not seriously arguable. In my view, the amendments of that kind ought to be permitted so that their merit or otherwise can be determined, if necessary, at the trial. It may not be necessary to determine them. And were I to decide now that an amendment should not be permitted because it raised no arguable defence, there would be the prospect of an appeal which could complicate the determination of all questions within the forthcoming trial.
[4] Accordingly, I see no sufficient reason to refuse leave to amend to add paragraphs 68 through 74, 90 through 97, 106 through 115 and 126 through 129.
[5] However, some of the proposed amendments would raise factual issues. Paragraphs 86 through 89 are premised upon the facts pleaded in paragraph 88. It was conceded that this raised a new factual case. I was informed that the firm which then acted for Barrier Developments no longer exists. The events in question occurred more than nine years ago. Because there is no explanation for the lateness of this amendment, and because of the evident difficulty in meeting a new factual case so long after the events and so close to the trial, paragraph 88 should not be allowed. It follows that paragraphs 86 to 89 will not be allowed.
[6] Within the new Part I, paragraphs 102 and 103 raise factual issues of whether the Applicants were ready, willing and able to complete contracts for the repurchase of lots 411 and 412 within what the Respondent alleges was the required time of 30 days from a date in December 2003. The allegations that the Applicants were not ready, willing and able to complete are made “in the premises” of, it would appear, the facts pleaded in paragraph 101. So the Respondent’s case, if these amendments were permitted, would appear to rely only upon those facts, which are that the Applicants did not call for settlement until June 2004. Nevertheless, the Applicants would be entitled to respond by reference to other facts. The difficulty then is that the Respondent has raised a new factual case which the Applicants may not be able to meet by the time of the forthcoming trial. This Part I will not be allowed.
[7] The case pleaded within the proposed Part K would raise a new factual issue, which is whether a notice given on 7 June 2006 appointing a time for settlement, later on that day, provided reasonable notice. This is an issue which in my view could be litigated within the forthcoming trial. Accordingly, whilst a new factual issue is raised, these amendments will be permitted. Paragraph 122(c) is apparently a drafting error and it should not be included in the pleading to be filed.
[8] Paragraphs 130 through 135 complain of caveats lodged by the Applicant Vercorp Pty Ltd. There is no counterclaim for their removal. Nor is there a counterclaim for damages for the caveats having been lodged without reasonable cause. The reason these allegations are within the Defence, rather than the Counterclaim, is revealed by paragraph 135, which pleads that the Respondent has been prevented by the caveats from commencing or completing construction of houses on the lots, so that any breach by it in that respect was caused by the conduct of Vercorp. That case would involve a significant factual enquiry as to whether Vercorp’s caveats did have that effect. It is an enquiry which would have to be undertaken in the litigation of the issues which I have directed to be tried in the forthcoming trial. It is far from demonstrated that the Applicants could fairly meet such a case in that trial. Accordingly, paragraphs 130 through 135 will not be allowed.
[9] Part N is headed “Unjust enrichment”. The proposed case here is that the Respondent has spent about $1.6 million towards construction on the lots and that this has enhanced their value. In consequence, it would be alleged, specific performance ought not to be decreed because the Applicants would become “unjustly enriched”. This would raise substantial factual questions as to what has been spent and the extent to which the value of the lots has been affected (if at all). Because this is to be pleaded as a defence to the claim for specific performance, this is a matter which cannot be postponed to some later hearing. Accordingly, paragraphs 136 through 139 will not be permitted.
[10] Parts D and E would not raise new factual questions and should be allowed.
[11] I come now to the amendments which are said to involve the withdrawal of admissions. The first relates to paragraph 6(h) of the present Defence, which admits the allegations contained in paragraph 6(b) and (c) of the Statement of Claim. The Respondent’s concern is that by those admissions, it might be said to have admitted that it became bound to perform the contracts dated 9 April 2001, by the agreement pleaded in paragraph 4 of the Statement of Claim or otherwise. I am unable to see how the Applicants could mistake the admissions of paragraph 6(b) and 6(c) in that way. But I have the impression from what was argued on their behalf that they will say that this is indeed the effect of the current pleading. That doubt should be dispelled by the amendments which are proposed to be made to paragraph 6 of the Defence. The facts of the payments to the Second Applicant and that they were caused to be made by the Respondent will remain the subject of admissions.
[12] Paragraph 40 is presently admitted. The Respondent proposes to deny it, upon the basis that it is untrue and is contrary to what the Applicants have pleaded in paragraph 41(a) of their pleading. They there plead that the Respondent, by its solicitor’s letter dated 5 March 2004, asserted to the Second Applicant that “the valuation exercise … is entirely pointless”. The Respondent wishes to say that in that way, it did object to the appointment of a valuer and it did inform the Second Applicant to the effect that it did not wish to make submissions to a valuer if appointed. The Respondent’s present pleading sets out the solicitor’s letter in full. The Respondent’s case in this respect continues to rely only upon that letter. The effect of the present admission at paragraph 40 is to limit the Respondent in arguing what was the effect of the letter. It should be permitted to withdraw that admission. There will be no prejudice to the Applicants in meeting this argument.
[13] Some of the proposed amendments are the result of amendments to the Statement of Claim made by the pleading filed by the Applicants on 26 March 2010. The Applicants concede that amendments which are a consequence of the Applicants’ amendments ought to be permitted. But they are critical of the proposed Defence in this respect because they say that the Respondent’s amendments do not, in each case, properly plead to their amendments. For example, paragraph 1B of the Statement of Claim was amended to allege that the alteration of the contracts which had been there pleaded occurred whilst the documents were in possession of the solicitors Coyne Coyne and Towers. On the face of the proposed paragraph 1B(b), that allegation would be denied on what are said to be the “Mere Nominee Grounds” and the “No Agency Grounds”. None of those matters would seem to be relevant to the simple factual question of whether the documents were amended whilst in the hands of Coyne Coyne and Towers. Therefore the effect of the Defence in the proposed terms would be to admit that particular allegation and there would be no prejudice to the Applicants. It was strenuously argued by the Applicants’ counsel that the Court should insist upon strict compliance with the pleading rules. Of course, the rules are not to be disregarded. But there are other valid considerations here given the imminent trial date and the need for the parties to apply their limited time and resources to the preparation of the substance of the case. It does not seem to me that any of the imperfections to which the Applicants have referred is something which will unfairly prejudice them at this trial.
[14] The proposed pleading contains other amendments. But they do not raise a new case or withdraw admissions. Their form is open to criticism as a matter of pleading style. But they would not compromise the fairness of the forthcoming trial.
[15] The outcome is that the Respondent will be permitted to file an amended Defence and Counterclaim in accordance with these reasons. It will be ordered to do so by 13 September 2010.
[16] There remains the application by the Applicants that District Court proceedings relating to lots 411 to 413 be transferred to this Court and heard with this matter in the forthcoming trial. The application was prompted by the proposed paragraphs 68 through 72 of the Defence. The District Court proceedings were commenced in 2001. They seem to have been overtaken by these proceedings commenced in 2004. Paragraph 72 of the proposed Defence would plead that to the extent that this proceeding and the District Court proceeding concern the same subject matter or claims for the same relief, the proceedings presently in this Court would constitute an abuse of process and are “liable to be struck out”. If the Applicants are concerned that this argument might succeed, there are other courses open to them to avoid it. Ultimately it appeared to be conceded by counsel for the Applicants that it was unnecessary to pursue this transfer of the District Court proceedings. The application for transfer will be dismissed.