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[2013] FCA 956
Federal Court of Australia
2013-09-16
Gilmour J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 These are the reasons given ex tempore on 16 September 2013, edited but not so as to alter their substance. 2 The applicant seeks leave to file a Further Amended Statement of Claim (FASOC). The only amendments sought are to paras [15] and [16]. The proposed amendment to para [16] is consequential upon the proposed amendment to para [15]. 3 The Court has a broad discretion to grant leave to amend a pleading. The discretion must be exercised having regard to the circumstances of the case and such relevant considerations as the overarching purpose set out in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth): Gove Aluminium Limited v EF Maritime Navigation SA [2012] FCA 599 at [10]-[11]; Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 273 ALR 147 at [38]-[45]. 4 In the present matter: (a) the pleadings have only just closed; (b) the proposed amendments do not raise new issues; (c) the proposed amendments are only minor in nature; and (d) there is no evidence of any prejudice to the respondents from the amendments. 5 At the hearing of this application there was a preliminary matter, principally raised by the first respondent, based in the content of an affidavit sworn on 16 September 2013, by Rebekah Ruth Giles, a partner in the firm of solicitors acting for the first respondent. Ms Giles, at some length and repeatedly, because there were different contexts in which the matter arose, deposes to the fact that the applicant was aware from at least 10 February 2011, which is the date of the Landgate search in the possession of the applicant, that a complete copy of the Mercury mortgage in favour of the second respondent was registered on the titles of properties at Peppermint Grove and Dalkeith, of which the first respondent was the registered owner. 6 Counsel appearing for the applicant forthrightly accepted that he, and indeed his instructor within the Australian Government Solicitor, would in 2011 have been aware of that fact, but says that, in the course of preparing the matter further, and indeed at the point that instructions were being given for the preparation of the statement of claim in this matter, that fact had escaped them - that is to say, the fact that there was in existence a complete copy of Mercury mortgage, registered at Landgate, of which they had known some time previously. In short, this fact had been forgotten. 7 I had invited counsel for the first respondent to state whether he wished to re-characterise the explanation by counsel for the applicant, but he eschewed such a course. In those circumstances I accept, without reservation, the explanation given by counsel for the applicant.
Paragraph 15 8 The reason for the amendment is set out in the affidavit of Mr Burrows of 5 September 2013, in particular in the letter of 3 September 2013 to the solicitors for the respondents which is annexure "TPB 2". 9 Whether or not the copy of the Mercury mortgage registered against the titles of the two properties is a complete copy or not is a matter of fact. The applicant had previously relied upon the first respondent's sworn evidence in previous court proceedings (WAD 95 of 2011) in pleading at para [15.1] that this copy of the Mercury mortgage was incomplete. The recent search of the registered mortgage on 26 August 2013 has revealed that which two years ago the applicant's lawyers had known, but forgotten, namely, that the registered copy is complete. Accordingly, the applicant proposes to correct the pleading to reflect this fact, by deleting the reference in para [15.1] to the registered copy of the mortgage being incomplete.
Paragraph 16 10 The deletion of para [15.1] requires a consequential amendment to para [16] as it can no longer be contended that the version of the Mercury mortgage referred to in that paragraph is the only complete copy. 11 Paragraph [16] of the proposed FASOC pleads three matters of undisputed fact arising from sworn evidence of 26 May 2011, given by the first respondent in previous court proceedings (WAD 95 of 2011). The facts pleaded in the paragraph, it will be said, evidence an inability or unwillingness on the part of the first respondent to put before the Federal Court accurate and complete documentation of a mortgage transaction to which she was a party and of which she could be expected to have direct knowledge. The applicant has relied on these matters from the outset: Commissioner of Taxation v Oswal [2012] FCA 1507 at [30]. The amended version of para [16] merely sets out these matters in greater detail. 12 Now, those paragraphs, amongst others, if they were permitted to be introduced by way of amendment, would also bear on the allegation in respect to an application under s 89 of the Property Law Act 1969 (WA), at paras [21] and [22] of the FASOC. Paragraph [21] asserts that the Mercury mortgage is an alienation of property. Paragraph [22] asserts that the Mercury mortgage was made with an intention by the first respondent firstly, to hinder or delay her creditors executing against the Peppermint Grove property and the Dalkeith property in order to recover their debts and, secondly, that there was an intention to defraud the first respondent's creditors. 13 There are six particulars to para [22]. They include, for example: first, that the Mercury mortgage was made very soon after the events pleaded at paras [8] to [12] of the FASOC; second, that the purported advances made by Mercury purportedly secured by the Mercury mortgage, predated the making of the Mercury mortgage, and then when one goes to particular 5, one finds that there is reliance upon the inferences arising from the matters referred to paras [8] to [18] of the FASOC that would, of course, include the amended paras [15] and [16]. 14 It was put by counsel for the first respondent that those inferences could not arise on the basis of what was asserted, that there were any number of reasons consistent with an innocent explanation, or explanations as to why the affidavit of the first respondent, with its annexures, had been sworn in the way it had, and the annexures had. 15 However, that seems to me to look at the matter in rather too confined a fashion. The matters relied upon in para [22] include a range of matters which, when taken together and considered by the trial judge in the course of the trial, will enable the trial judge to determine whether or not such inferences arise. However, I do not think it could be said that the proposed amendments are incapable, as part of a mix of factors, of giving rise to such inferences, as asserted in para [22]. 16 In those circumstances, I propose to permit the further amendment of the statement of claim in the way sought by the applicant. I will order that the applicant pay any costs of the respondents thrown away by the further amendment. I will further order that on or before 10 November 2013, the parties give standard discovery pursuant to r 20.14 of the Federal Court Rules 2011 (Cth), and that the directions hearing be adjourned to 9.30 am on 25 November 2013. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.
Commissioner of Taxation
Oswal