Background
1The question to be decided on this application is whether the first defendant should be given leave to withdraw certain admissions.
2By its statement of claim filed on 7 October 2009 the plaintiff sued the first and second defendants, alleging various breaches by them of the provisions of mortgages and loan agreements referred to more fully below. The statement of claim was served on both defendants, who then retained Moloney Lawyers to act for them. On 18 February 2010 solicitors acting for the plaintiff served Moloney Lawyers with a Notice to Admit Facts and Authenticity of Documents, addressed to each defendant. Annexed to the Notices to Admit Facts and Authenticity of Documents was a copy of a general power of attorney dated 26 June 2007, apparently signed sealed and delivered by the first defendant, and witnessed by one Mohamad Harmouche. Relevantly for this application, the notice addressed to the first defendant required him to make admissions as follows:
"1. On 26 June 2007 you executed a General Power of Attorney appointing the second defendant and Vanessa Coppola to be your attorneys...
...
The plaintiff requires you to admit the authenticity of the following documents:
The Power of Attorney, a copy of which is annexed and marked "A"."
3On 3 March 2010 Moloney Lawyers sent a Notice Disputing Facts and Authenticity of Documents on behalf of the first defendant. It provided relevantly:
"1. The first defendant admits that he signed a document titled general power of attorney in or about June 2007 but says that he did [?not] know the substance or effect of the document he was signing. He says that he was misled as to the nature and effect of the document that he signed.
...
The first defendant admits that the power of attorney attached to the notice to admit facts and authenticity of documents is a true copy of the document titled general power of attorney signed by the first defendant."
(The apparent typographic error in answer 1 above was not raised by counsel in argument before me and I have proceeded on the basis that all concerned assumed the word "not" had been left out by accident)
4On 30 September 2010 the plaintiff was given leave to file a Further Amended Statement of Claim (FASC).
5By that pleading, filed on 13 October 2010, the plaintiff claimed orders for possession of properties at Concord and Stanmore and judgment for monies lent and interest thereon, being sums secured by mortgages on the properties. Alternative orders, not relevant here, were also sought.
6The plaintiff alleged that the defendants were its customers: both had title to the Concord property, and the second defendant was sole proprietor of the Stanmore property; they had given the plaintiff mortgages over both properties to secure the borrowing of the moneys; the defendants had defaulted under the mortgages and related agreements; they had failed to comply with demands to repay the monies; because of defaults under the mortgages the plaintiff now has a right to possession of each of the properties, together with judgement for the sums owing.
7By the time the FASC was responded to by the defendants, they had instructed different solicitors, namely G & D Lawyers.
8The FASC averred relevantly:
"25. By an agreement in writing, the first defendant appointed the second defendant together with Vanessa Coppola (Miss Coppola) to be his attorneys.
Particulars
General Power of attorney dated 26 June 2007 registered on 26 June 2007 in the General Register of Deeds in New South Wales and assigned Book 4520 No 544(Power of Attorney)."
In accordance with the powers conferred on the second defendant and Miss Coppola under the power of attorney, either one of the second defendant or Miss Coppola executed the following documents on behalf of the first defendant to give effect to the Home Loan Facility and Business Facility, with the first defendant's express authority:
(a) Home Loan Contract;
(b) First Mortgage;
(c) Business Facility Contract;
(d) Second Mortgage and;
(e) Any documents ancillary to the Home Loan Contract, First Mortgage, Business Facility Contract and Second Mortgage."
9By their defence filed on their behalf by G and D Lawyers on 17 January 2011 both defendants alleged inter-alia that in the case of the first defendant, the signature purporting to be his on each mortgage had been a forgery. As to the second defendant, they alleged that although she had signed both mortgages, her signature in each case had been procured by their daughter, Vanessa, by way of fraud, deceit and dishonesty. They asserted that neither of them had received any benefit from the transaction and that Vanessa had received all of the money advanced by the plaintiff. In direct response to paras 25 and 26 of the FASC they said:
"Power of Attorney
Denied. The First Defendant did not knowingly appoint Vanessa Coppola to be his attorney.
Particulars
a. The First Defendant's signature on the General Power of Attorney ("POA") dated 26 June 2007 and registered on 26 June 2007 in the General Register of Deed (sic) in New South Wales and assigned Book 4520 No 544 ("Power of Attorney") was procured by the fraud, deceit and dishonesty of Vanessa Coppola:
i. There was no need for a POA;
ii. Vanessa Coppola procured the signature of the first defendant by pressure, deceit and dishonesty,
iii. Vanessa Coppola caused the real property of the First and Second Defendant to be used as security for various loans which were for her own financial benefit and without the consent of the First and Second Defendant (sic)
iv. Vanessa Coppola actively concealed these frauds by taking and concealing the First and Second Defendants' mail.
Denied. The First Defendant and the Second Defendant repeat paragraph 25."
10On 16 January 2011 that pleading was verified by the first defendant, who said inter-alia "I believe that the allegations of fact contained in the defence are true". His signature was apparently witnessed by Graeme Ulbrick, his then solicitor.
11On the same day, the defendants filed a cross-claim. There were three cross defendants. The first was the plaintiff. The second was their daughter, Vanessa. The third was the Registrar General. As against the plaintiff, they sought relevant declarations and associated relief to have the plaintiff's mortgages discharged on the two properties and to be relieved from liability for any indebtedness. As against their daughter, in addition or in the alternative, they sought damages. In the alternative to that order they sought an order pursuant to section 120 Real Property Act 1900 that the Registrar General pay the plaintiff from the Torrens Assurance Fund the amount of loss and damage suffered by them.
12After the defence and cross claim were filed the defendants changed solicitors again, this time instructing Allied Lawyers, their current solicitors.
13By notice of motion filed on 22 July 2011 the first defendant sought leave to file and serve a "further amended defence and cross-claim." (Although so far as I can ascertain there was no earlier amended defence or amended cross claim.) Although the proposed amended defence does not comply with UCP rule 19.5, it is at least apparent that, for the first time, the first defendant now wishes to say that the signature purporting to be his on the power of attorney is not his. Thus, he says, he is entitled to be relieved from all liability under the mortgage and loan agreements. He did not at that stage seek leave to withdraw any admissions.
14On 13 August 2011 the second defendant consented to judgement against her for possession in respect of the Concord property and for the sum claimed against her under the relevant loan agreements.
15In support of his motion seeking leave to withdraw the admissions made on his behalf on 4 March 2010, the first defendant swore an affidavit on 12 August 2011. The first defendant's solicitors, it was conceded by his counsel, Mr Martin, were given notice that the first defendant was required for cross examination on that affidavit. However the first defendant was not present at court. Instead, Mr Martin initially sought to persuade me, over the objection of the plaintiff, to permit him to read the affidavit although his client was not present. The affidavit consists of six paragraphs. They are as follows:
"1. I am the first defendant in these proceedings.
On 12 August 2011 at 2:30 PM I attended a conference arranged by my solicitor at his office in Auburn. During this conference, my solicitor brought to my attention a document titled Notice Disputing Facts and Authenticity of Documents dated 3 March 2010. A copy of this document is annexed to this affidavit and marked "A".
My solicitor drew my attention to the contents of the response provided beside the numeral 1 on page 1 of the Notice Disputing Facts and Authenticity of Documents document. The document is signed by my former solicitor, Patrick Maloney. (sic)
I was taken by surprise to the reference in the Notice Disputing Facts and Authenticity of Documents document to an admission by my former solicitor on my behalf that I signed the Power of Attorney document in or about June 2007. I did not sign this document at any stage.
I was not aware that the Notice Disputing Facts and Authenticity of Documents document was being issued by my former solicitor on my behalf.
I did not instruct my former solicitor at any stage that I signed the Power of Attorney dated June 2007 and was never made aware that my former solicitor was responding to the Notice Disputing Facts and Authenticity of Documents document in the manner which he has."
16In the course of addressing me, Mr Martin said he no longer wish to read paragraph four. When he informed me of that, Mr Newton, counsel for the plaintiff, said he no longer wished to cross examine the first defendant.
17It is to be noted that in the paragraphs read, the first defendant did not say he had not signed the power of attorney. Rather, he said he had not instructed his former solicitor that he had signed it, or implicitly, to make the admissions.
18I infer that following the conference the first defendant says he attended on 12 August 2011, he instructed his solicitors to amend the earlier motion. An amended motion was filed on 18 August 2011. By that motion, he seeks the following orders:
"1. That the first defendant have leave to file and serve a further amended defence and further amended cross-claim in the form annexed hereto and marked "A" and "B" respectively.
1A. That the first defendant be granted leave pursuant to r17.3 (3) of the Uniform Civil Procedure Rules (NSW) 2005 to withdraw the following admissions made in a Notice Disputing Facts and Authenticity of Documents prepared by the first defendant's former solicitors dated 2 March 2010 ("the Notice"):
a. the admission in paragraph 1 of the Notice; and
b. the admission in paragraph 8 of the Notice.
Further or in the alternative to 1, an order that the existing amended defence of the first defendant be struck out and leave be given for the further amended defence and further amended cross-claim in the forms annexed hereto and marked "A" and "B" respectively.
That the first defendant pay the costs thrown away by reason of the further amended pleadings of the plaintiff and the second cross defendant.
That the costs of this motion be costs in the cause of both the plaintiff and the second cross defendant.
Such further or other order as this honourable Court sees fit"
19In the course of opening to me, Mr Martin foreshadowed an application to withdraw the admissions in the earlier pleading. No formal application was later made.
20The first defendant's application was opposed by both the plaintiff, and the Registrar General, for whom Ms C A Webster appeared.
[2]
The Discretion to Permit Withdrawal of an Admission
21UCP rule 17.3 provides:
(1) The requesting party may, by a notice served on the admitting party (the requesting party's notice), require the admitting party to admit, for the purposes of the proceedings only, the facts specified in the notice.
(2) If, as to any facts specified in the requesting party's notice, the admitting party does not, within 14 days after service on the admitting party of the requesting party's notice, serve on the requesting party a notice disputing that fact, that fact is, for the purposes of the proceedings only, taken to have been admitted by the admitting party in favour of the requesting party only.
(3) The admitting party may, with the leave of the court, withdraw any such admission.
22There must be proper grounds for the exercise of the discretion. The circumstances in which an admission was made must be examined. There is usually a need for the applicant to explain the circumstances in which the admission was made and satisfy the Court a grant of leave will not prejudice an opponent's right to a fair trial: Maile v Rafiq [2005] NSWCA 410 at [42] (per Tobias JA with whose reasons Brownie AJA agreed). It has also been said that where leave to withdraw an admission is sought, a court will require an explanation for the making of the admission. The explanation must be a sensible one, based on evidence of a solid and substantial character: Langdale v Danby [1982] 3 All ER 129; Hollis v Burton [1892] 3 Ch 226 and Crumper v Pothecary [1941] 2 KB 58 at 70; Celestino v Celestino [1990] FCA 299 at [12]; Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309; (2003) 204 ALR 327 at [17]-[19]. In For The Good Times Pty Ltd v Coltern Pty Ltd [2007] NSWSC 108 at [4] Young J (as he then was) said:
"[3] ... Essentially, the court is after the truth. The pleadings are the principal method of defining the issues to enable the court more easily to get to the truth. Thus, in principle, an erroneous admission should be able to be withdrawn unless other factors outweigh. The principal factor that might outweigh is that there is such great prejudice to the other party, because of the way in which that party has prepared his or her case on the basis of the admission, that the leave should not be given.
[4] What I have just said is a gross over simplification and the cases show there has to be a distinction between an admission deliberately made, an admission which is key to the way in which the parties have prepared their case, and more peripheral facts. There must be some evidence as to how the admission was made and there must be some material to show that it was erroneous ."
(My emphases)
23Although here the admission was in a Rule 17 Notice, the authorities treat such admissions in the same way as admissions in pleadings: Celestino (pre litigation admission of liability in correspondence); Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292; [2001] 2 Qd R 455 (failure to respond to notice to admit facts).
[3]
An Evidence Issue
24There have been other proceedings in this court in which the first defendant and the second defendant and the plaintiff were also parties, and in which the same power of attorney came under scrutiny. In those proceedings, heard by Slattery J, claims were made for money lent by a company called Fast Funds Pty Limited. His Honour gave judgement on 14 May 2010: Fast Funds Pty Ltd v Coppola [2010] NSWSC 470. There, the plaintiff alleged the first defendant's daughter, Vanessa, had signed relevant loan documents under the power of attorney. On 10 December 2009 the first defendant swore an affidavit in those proceedings. Paragraphs 32 and 33 said:
"32. In about mid 2007 Vanessa said to me words to the effect of:
"Dad I'm having trouble managing your properties on your behalf. Although I am your daughter it is difficult for me to get information because I am not the owner. I've spoken to our lawyer and he suggests that I obtain a power of attorney. That would allow me to manage your properties."
33. Some time shortly after the statements made to me by Vanessa as set out in paragraph 32 above I was presented with a document called power of attorney. Vanessa said to me words to the effect of:
"Dad this is the document that we were talking about. It allows me to manage your properties."
...
I signed a power of attorney on 26 June 2007. My signature was witnessed by my youngest daughter's then boyfriend Mohamad Harmouche. Annexed hereto and marked "A" is a copy of that power of attorney dated 26 June 2007."
25In the course of the trial before Slattery J, counsel then appearing for the first defendant read his affidavit of 10 December 2009. At paragraphs 45 and 46 of his judgement, Slattery J said:
"45. Shortly afterwards Vanessa presented a form of a power of attorney to Elio, identifying it to him as the document "that we were talking about" that is, as a document allowing her to manage his properties. Elio Coppola trusted Vanessa's description and signed the document as she requested. He signed the power of attorney on 26 June 2007.... Mr Mohamad Harmouche then the boyfriend (and later the husband) of Elio's youngest daughter, Laura, witnessed the execution of the power of attorney...
46. Elio Coppola did not obtain legal advice concerning his entry into this power of attorney. I accept that he relied upon what Vanessa said to him about the way it would be used".
26At paragraph 220 Slattery J said:
"Elio Coppola claims that he should not be bound by the transaction documents constituting the first loan. He did not execute any of those documents personally. Vanessa Coppola executed the letter of offer, the declaration of loan purpose and the associated mortgage to the first loan as his attorney pursuant to the power of attorney dated 26 June 2007. Elio's only act of assent to the first loan is through his execution of the power of attorney on 26 June 2007. I find that he understood that the power of attorney would only be used for a more limited purpose than executing mortgages over the title to November 9."
27Before me, Mr Newton tendered the first defendant's affidavit of 10 December 2011 from the proceedings before Slattery J. Mr Martin opposed that course. I reserved my decision on the admissibility of the evidence and said I would rule on it when giving judgement. Both counsel than addressed me on the alternative possibilities, that I would allow it in and that I would not.
[4]
Should that evidence be admitted?
28Ms Webster submitted that I should admit the first defendant's affidavit of 10 December 2009 as it provides a clear statement adopting the power of attorney in unmistakable terms in precisely the same effect as the words in the pleading the first defendant verified here.
29Mr Martin conceded before me that the power of attorney which was the subject of evidence before Slattery J, was the same power of attorney as is in question here.
30But, relying on Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355, he argued that an admission in other proceedings cannot and should not operate to prevent his client from litigating a fact in issue in existing proceedings which was not a fact in issue in other proceedings, even where there was a privity of parties; Slattery J, he argued, was not called on to decide whether the first defendant had in fact signed the power of attorney: any opinion expressed by him concerning the power of attorney would be obiter. He put to me that section 91, Evidence Act 1995 (NSW) prevents the admission into evidence of a finding of fact to prove the existence of a fact in issue in those same proceedings; if the judgment of Slattery J were admitted for a non-hearsay purpose, he argued, section 91(2) operates to negative the operation of section 60 Evidence Act . He also put to me that if I allow in the affidavit, it would constitute, at the trial, at best for the plaintiff, a prior inconsistent statement: it does not prevent him from running the case in his proposed new pleadings.
31Affidavits or documents which a party uses knowingly in judicial proceedings are capable of being evidence against that party in other proceedings to prove the same fact: British Thomson-Houston Co Ltd v British Insulated and Helsby Cables Ltd [1924] 2 Ch 160 at 164-165, 170-171. Mr Martin did not dispute the principle.
32Counsel did not in argument refer me to Uniform Civil Procedure rule 31.9 which provides:
"(1) In any proceedings, evidence taken, or an affidavit filed, in other proceedings may not be used as evidence, saving all just exceptions and unless the court orders otherwise.
(2) Leave may not be granted under sub rule (1) except to allow the evidence taken, or affidavit filed, in the other proceedings to be used in relation to the proof of particular facts."
After I had reserved my judgment, I asked for and received, from Mr Martin and Mr Newton, submissions on the part to be played by rule 31.9 in this dispute. Both counsel gave me helpful written submissions.
[5]
Consideration on admissibility issue
33The evidence tendered is the affidavit, not the judgment of Slattery J. I propose to give leave to allow it in. It was apparently prepared by the first defendant's former solicitor, Mr Moloney, who witnessed it. On its face it says it was translated to the first defendant from English to Italian before he swore it. It is I think relevant to an issue on this application, namely whether what is contained in the admission is erroneous. It is important evidence in the plaintiff's case (s 192 Evidence Act ).
34I do not accept Mr Martin's submission that the issue is to be determined by reference to Cleary . Cleary went to a different issue, namely whether an issue which arises but is not decided in one case may be raised in another. This is not such a case. The affidavit is simply sworn evidence put forward by the first defendant in other proceedings. The plaintiff is not attempting to rely on an issue decided by Slattery J. It is true his honour made a finding that the first defendant had signed the power of attorney. But it is not the finding which the plaintiff wants to rely on. So section 91 Evidence Act has no relevance.
35The admission is far more than, as submitted by Mr Martin, a prior inconsistent statement, but clear and unequivocal admissions that he signed the power of attorney and that the power of attorney is genuine.
[6]
Other Evidence
36In the course of his address Mr Martin sought leave to reopen, to rely on the verified proposed amended defence and cross claim served on behalf of the first defendant with his motion for leave to file those pleadings. The pleadings were verified by affidavit of 19 July 2011. Among other things the first defendant in his affidavit swore to he said:
"In answer to the relief sought in the further amended Statement of Claim the First Defendant:
says that it is not his signature, nor did he authorise his signature to be placed, on any of the Plaintiff's loan documentation or mortgages;
further says that it is not his signature on the document headed "Power of Attorney" and said to be dated 26 June 2007 ..."
37Mr Newton opposed leave to re-open and submitted that the affidavit ought not be formally read unless the first defendant was made available for cross examination. Mr Martin then said he no longer relied on the affidavit: merely the fact that there were pleadings which had emanated from the first defendant's current solicitor. He asked me to infer that they represented the current instructions of the first defendant. I admitted the proposed pleadings for that purpose, and I infer they do represent his current instructions.
38Although the defendant in his existing pleading asserted his signatures on the mortgage and loan documents were forgeries, Mr Martin said that that pleading did not adequately put the position, which is really this: all mortgage and loan documents were executed under the power of attorney. Thus, Mr Martin submitted, the only factual issue on a hearing would be whether his client, Mr Coppola, had executed the power of attorney: on the cross-claim, the only evidence will be that of a forensic document examiner. As the proposed pleading deletes Vanessa Coppola as a party, the allegations against her of fraud will not be pursued. As to lay evidence, he said Mr Coppola would "perhaps" put on an affidavit saying "it is not my signature". Further, no allegations of fraud would be ventilated, since the fraud claim against the first defendant's daughter would not be proceeding.
[7]
Should I permit withdrawal?
39At this reasonably early stage in the proceedings, an application to withdraw admissions should usually face a lower hurdle than would an application at trial, or, especially, on appeal. There are reasons for allowing the first defendant to withdraw the admissions. Thus I take into account:
(a)Although the proceedings have been on foot for more than two years they have not been set down for trial: in Jeans on the other hand, as Mr Martin submitted, the application to withdraw the admission was made very late, on the third day of the trial, where permitting withdrawal would have opened up new and quite different issues from those presented already. I am satisfied this application was made promptly, once the first defendant's current solicitor became aware of the admissions;
(b)There is no evidence put forward by the plaintiff of having changed its position by reason of the admissions, although it would, if the amended pleadings were permitted, be required to replead to the cross-claim and, possibly, file a reply;
(c)The first defendant has provided what could be described as an explanation for the application and proposed change of defence: he says (and was not challenged on this) the admissions in the response to the Rule 17 notice were made without instructions. Mr Martin submitted that paragraphs five and six of the first defendant's affidavit of 12 August 2011 are sufficient material to provide an explanation, showing why the admission was originally made;
(d)Although there was no evidence from the solicitor on this issue, and no explanation for the affidavit which verified the defence in which the first defendant admitted he had executed the power of attorney, Mr Martin submitted that the plaintiff, had it chosen, could have subpoenaed the solicitor, Mr Moloney, but had chosen not to;
(e)I see some merit in Mr Martin's argument that if his client is permitted to withdraw the admission and replead, issues at trial will be narrower; and that if proceedings against Vanessa cease, that would reduce costs and court time consumed;
(f)What I infer to be his current instructions that he did not sign the power of attorney;
(g)Apart from a costs perspective, if I were to accede to the application of the first defendant, there would be no real prejudice to the plaintiff in having a fair trial: Maile v Rafiq at [42].
[8]
Consideration on whether or not to give leave to withdraw
40I say at once that I have not ignored what was said in Cropper v Smith (1884) 26 Ch D 700 at 710-711:
"[T]he object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party... [A]s soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right..."
See also Clough and Rogers v Frog (1974) 48 ALJR 481.
41However, I consider that I should refuse leave to withdraw the admissions. These are my reasons:
(a)Although there is uncontradicted evidence from the first defendant that the Rule 17 notice admissions were not made on instructions, he did not assert in his affidavit that what is contained in the admissions was erroneous. He did not deny having signed the power of attorney. On the whole of the evidence (apart from what I infer to be his current instructions) there is no dispute factually that he signed the power of attorney; putting aside the admissions, there are his verified defence in these proceedings, and his affidavit in the other proceedings.
(b)The admissions in the Rule 17 notice are completely consistent with the undisputed evidence showing he signed the power of attorney.
(c)I accept Mr Newton's submission that the fact that Mr Moloney was not called by the plaintiff, is irrelevant: he was available to all parties: no inference against the plaintiff should be drawn from his absence.
(d)No explanation was provided for the verified admission in the pleading, although its contents are completely consistent with the admissions in the Rule 17 notice and totally contrary to the case he how wishes to put; although the first defendant asserted Mr Moloney had made the Rule 17 admissions without instructions, he made no such complaint about Mr Ulbrick, who acted for him when the verified pleading was prepared and filed on 16 January 2011.
(e)Although this is an interlocutory application, and there is uncontradicted evidence concerning the lack of instructions to his former solicitor concerning the making of the Rule 17 admissions, I consider the first defendant should have gone further than he did, and given positive evidence, consistently with the defence he now wishes to file, that what was contained in the admissions was incorrect; at best for him, the affidavit leaves his evidence in support of the orders as equivocal.
(f)I accept Mr Newton's submission that it would be futile to allow withdrawal.
42I take account of the public interest in facilitating in civil disputes just, quick and cheap resolution of the real issues in dispute: s 56 Civil Procedure Act 2005. I also take account of the principles reflected in sections 58 and 64 of that Act. I accept the logic of Mr Martin's submission that if his application were to succeed there would be a narrowing of issues: and there would be one less party, and none of the complications which might arise with the late service of the second cross defendant. But on the present state of the matter, if the plaintiff makes a summary judgement application, that can also bring the matter to a speedy conclusion. If it succeeds, as a practical matter, it is unlikely, I think, that the cross claims will proceed further.
43Mr Martin urged me to infer that although his client had not given sworn evidence that he had not signed the power of attorney, "there is at least a possibility, however small, that the verified pleading in which that admission is said to be made was done on a similar basis", that is, that it was done without instructions. However, as Ms Webster and Mr Newton put to me, Mr Moloney was his solicitor when the Rule 17 notice was served, whereas a different solicitor, from a different firm, (Mr Graeme Ulbrick of G & D Lawyers) was acting for him when the defence was verified. So, each of them submitted, that submission is just not available: indeed, the fact that two different solicitors in two different firms on two different occasions, almost a year apart, apparently prepared documents containing the same admissions, highlights the gap in the first defendant's evidence.
44I do not accept Mr Martin's submission that determination of factual issues concerning the power of attorney may be simply done. In my view there may be much more required than obtaining a forensic document examiner's report. The various solicitors who have acted for the first defendant along the way would no doubt give evidence, as would Mr Hamouche, who apparently witnessed the signature on the power of attorney.
45I have considered Mr Martin's argument that costs orders, including on an indemnity basis, may be made against the first defendant if the case in the proposed pleading is ultimately found to be false: but there is no evidence that the first defendant could satisfy such costs orders, and, as Mr Martin conceded, costs orders do not necessarily assist a successful party.
46I accept Mr Martin's submission that refusal of his application is tantamount to an invitation to the plaintiff to make a successful summary judgement application. But that is the consequence of what I am satisfied is a lack of evidence to support the application.
47I have observed that although foreshadowing an application to withdraw the admission in the affidavit verifying the defence, Mr Martin made no formal application. Any such application however would have been doomed to fail. There was no evidence at all to explain how he came to make that admission. There was no evidence (apart from what I infer are his current instructions) to show it is wrong. That evidence is, I consider, of very slight weight.
48Orders
(1)The amended notice of motion is dismissed.
(2)The first defendant is to pay the costs of the plaintiff and the third cross defendant.
(3)Adjourn the matter for directions to the Registrar's list on 14 November 2011.
[9]
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: 07 November 2011