Shakespeare Haney Securities Ltd v Chedid [2011] NSWSC 1629 (8 December 2011)

Last Updated: 10 January 2012

Supreme Court New South Wales

Case Title:	Shakespeare Haney Securities Ltd v Chedid
Medium Neutral Citation:	[2011] NSWSC 1629
Hearing Date(s):	08/12/2011
Decision Date:	08 December 2011
Jurisdiction:	Civil
Before:	Garling J
Decision:	(1) I order that the defendant have leave to file on or before 4pm, Thursday, 15 December 2011 an amended defence in the form which I have initialled and placed with the papers with the exception of paragraph 4(c). (2) I grant leave to the defendant to file and serve on or before 4pm, Thursday 15 December 2011 the cross-claim in the form I have initialled and placed with the papers. (3) I order that service of those documents be effected on the plaintiff's solicitors on or before 4pm, Friday 16 December 2011. (4) I order the defendant to pay the plaintiff's costs of and associated with the defendant's further amended motion dated 6 December 2011, which I assess in the gross sum of $10,000. (5) I order those costs to be paid within 14 days. (6) I stand over for directions to 9.30am, 3 February 2012 the motion of the plaintiff for summary judgment.
Catchwords:	PRACTICE AND PROCEDURE - Notice of motion seeking leave to file amended defence and cross-claim - Overriding purpose in Court exercising power is to facilitate the just, quick and cheap resolution of the real issues - Purpose of all necessary amendments to determine the real questions raised by proceedings - Proposed amended defence - Properly pleaded would constitute a defence - Occurs early in proceedings albeit late in terms of hearing of motions - Raises matters that are or will be in issue properly between parties - Not satisfied that allowing defence would cause any irremediable prejudice to the plaintiff - Leave granted - Proposed amended cross-claim adequately pleads a cross-claim for relief under Contracts Review Act - Leave granted - Concurrent notice of motion by plaintiff seeking summary judgment stayed until plaintiff assesses new pleadings
Legislation Cited:	Contracts Review Act 1980 Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
Cases Cited:
Texts Cited:
Category:	Interlocutory applications
Parties:	Shakespeare Haney Securities Ltd Sid David Chedid
Representation
- Counsel:	J Hogan-Doran / L Thomas (P) D Allen (D)
- Solicitors:	Tucker & Cowen, Solicitors (P) Proctor & Associates (D)
File number(s):	2010/354574
Publication Restriction:	Nil

JUDGMENT

1. On 25 October 2010, the plaintiff Shakespeare Haney Securities Limited commenced proceedings against Sid David Chedid, as the only defendant seeking judgment in the sum of a little over $1.58 million.

2. The plaintiff relied upon a Deed of Guarantee which was entered into by the defendant on or about 25 July 2005, in which the defendant and Mr Spiliotakos guaranteed the borrowings of a company called Eleven on the Ocean Pty Ltd, of which they were then the sole shareholders and directors. The company was engaged in development of property at The Entrance in New South Wales. Subsequently, the loan to the company was extended both as to time for payment and as to amount. The amount by which it was extended was a little over 10 per cent.

3. Initially, the statement of claim could not be served and an order was obtained from the Court on 5 August 2011 for substituted service on the defendant. That substituted service seems to have succeeded and the matter came before the Court for case management on 31 October 2011. At that time there was a dispute between the parties as to the provision of particulars by the plaintiff to the defendant and an indication that the plaintiff wished to move for summary judgment.

4. On 15 November 2011, orders were made to facilitate a hearing of both the plaintiff's notice of motion for summary judgment and the defendant's notice of motion for further and better particulars. Those two motions were listed before the Court today in the duty judge's list.

5. The evidence discloses that recently the defendant instructed a new lawyer to act for him, Mr Kekatos of Proctor & Associates. It seems as a consequence of the change of solicitors the defendant has adopted a new approach to the Notice of Motion, which it filed.

6. I have today granted leave to the defendant to file a Further Amended Notice of Motion dated 6 December 2011. In that Notice of Motion the defendant sought leave to file an amended Defence and leave to file a cross-claim. Although I heard both motions together, the course of the argument has led to a position being reached which is acceptable to both parties and which is that I should consider first, the question of whether the defendant ought be permitted to file an amended defence and a cross-claim and then, secondly, to consider what the position is with respect to the plaintiff's notice of motion for summary judgment.

7. The plaintiff foreshadows if the Court were to grant or make orders permitting the filing of further pleadings by the defendant, it would wish to consider its position with respect to whether it would proceed to seek summary judgment for all of the sum in dispute or only part of it. The defendant does not oppose the plaintiff having time to give consideration to that issue.

8. Accordingly, what falls for judgment now is whether or not I should grant leave to the defendant to file an amended defence and a statement of cross-claim.

Leave to Amend

9. The grant of leave to amend the pleading is an exercise of the Court's powers under the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005. In exercising the court's power to grant leave to file amended pleadings, the Court does so having regard to the overriding purpose of the Civil Procedure Act and the rules of court. That overriding purpose is to be found in s 56(1) of the Civil Procedure Act and it is that the court in exercising any of its power is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings.

10. Section 64 of the Civil Procedure Act , whilst giving the court the necessary power to permit the amendment of pleadings, notes in subsection 2 that what should occur is that all necessary amendments which are to be made are done so for the purpose of determining the real questions raised by, or otherwise depending on the proceedings.

11. The amended defence which is now proposed to be filed raises a series of arguments which if successful would provide the defendant with a defence, at least in part, if not in whole. There is one exception to that statement, with respect to one of the pleaded defences.

12. In the presently amended defence, it is quite clear and is now beyond argument, that the terms of the defence in paragraph 4(c) can simply not be maintained.

13. Leaving that exception to one side, it is not appropriate for me to express any view on this motion as to whether I think the defendant has any prospect of proving the defences that are pleaded. I am satisfied that the defences which are pleaded on their face are properly pleaded and by their terms, if made out, would constitute a defence.

14. The plaintiff submits that the amended defence has come very late. I am not sure I agree with that. As I earlier said, this matter really was first before the Court in August, the Motion for Summary Judgment was first addressed in October and it is now December. I think that these proceedings are at a relatively early stage in its unfolding and I do not accept the argument that the plaintiff's amending of the defence comes late in the proceedings. On the contrary, it seems to me to come early in the proceedings and it seems to me to raise matters that are, or else will be, in issue properly between the parties.

15. I do accept, however, the argument that the amended defence in terms of the filing of the two notices of motion which brought the matter on for hearing today, comes very late. However, in dealing with this question, I am not satisfied, subject to any question of costs, that allowing this defence to be filed would cause any irremediable prejudice to the plaintiff.

16. I am satisfied that I should grant leave to file the amended defence.

17. The cross-claim which it is proposed to file adequately pleads a cross-claim for relief under the Contracts Review Act 1980. An issue exists as to whether the Contracts Review Act is available to the defendant, to rely upon in the context of the dealings in this case, but that will be a matter for proof at trial.

18. Accordingly I propose to grant leave in accordance with the notice of motion to file the amended defence and the cross-claim.

Costs

19. In this matter I have given leave to the defendant to file an amended defence and cross-claim. For the same reasons, which I expressed in the course of my judgment on that issue, it is appropriate that the defendant be ordered to pay the plaintiff's costs. Principally, the form of the amended defence has come very late in the interlocutory process.

20. For the reasons which are apparent in the transcript of discussion with counsel, I have formed the view that in accordance with s 98(4)(c) of the Civil Procedure Act , rather than referring the costs order for assessment, it would be preferable for the Court to make a specified gross sum order and also to order that that sum is payable forthwith.

21. Mr Hogan-Doran informs me that the total costs associated with the proceedings before the Court today is in the order of $25,000. Much of that is associated with the application for summary judgment and the preparation of affidavits and submissions with respect to that issue. Since I am proposing to stand over to that motion, I do not think any order for costs that I make today ought include any costs associated with that motion. Rather I propose to make an order for costs against the defendant and in favour of the plaintiff on the defendant's further amended motion to amend its pleading and to file a cross-claim.

Orders

22. I make the following orders:

(1) I order that the defendant have leave to file on or before 4pm, Thursday, 15 December 2011 an amended defence in the form which I have initialled and placed with the papers with the exception of paragraph 4(c).

(2) I grant leave to the defendant to file and serve on or before 4pm, Thursday 15 December 2011 the cross-claim in the form I have initialled and placed with the papers.

(3) I order that service of those documents be effected on the plaintiff's solicitors on or before 4pm, Friday 16 December 2011.

(4) I order the defendant to pay the plaintiff's costs of and associated with the defendant's further amended motion dated 6 December 2011, which I assess in the gross sum of $10,000.

(5) I order those costs to be paid within 14 days.

(6) I stand over for directions to 9.30am, 3 February 2012 the motion of the plaintiff for summary judgment.

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