Dewheath Pty Ltd v Edmunds

Proposed Amended Defences 18The Notice of Motion seeks leave to file Amended Defences. Relevantly, each defence is in identical terms. In the analysis which follows, only one Defence will be dealt with. However, the conclusions which are reached, and the reasons which are expressed, apply equally to all Defences. It is simply a matter of convenience to deal with one Defence. 19The proposed Amended Defence has two substantially different parts. 20The first part seeks to withdraw, or else recast, earlier admissions or partial admissions made in the Defence which was first filed. 21The second part of the Defence seeks to add a variety of defences which were not previously pleaded. These new defences are: (a)a defence of contributory negligence; (b)a defence pursuant to s 5O of the Civil Liability Act 2002; (c)a defence of proportionate liability pursuant to s 35 of the Civil Liability Act; (d)a defence pursuant to the Professional Standards Act 1984, being a scheme which it is said, limits the maximum liability; and (e)a limitation defence pursuant to the provisions of the Limitation Act 1969. 22It will be convenient to consider these proposed amendments separately in these two broad parts.

Withdrawal of Admissions 23The Statement of Claim is pleaded using general terms. It lacks specificity as to time and precision as to detail. As is not uncommon, language is broad, and loosely used. 24Many of the admissions which are sought to be withdrawn in the Amended Defence relate to the existence, and the content, of the retainer between Dewheath and Mr Edmunds. Mr Tapp, the directing mind of Dewheath, was the person who actively engaged Mr Edmunds' services. 25The retainer, and the extent of it, which is pleaded depends, so it seems, upon matters that are both express and implied. There is little, if any, issue about the express matters. The real issue appears to be about what can be implied, as a consequence of the retainer, in terms of the obligation owed by Mr Edmunds to Dewheath. 26The initial Statement of Claim, filed 12 February 2009, in a number of paragraphs pleaded the retainer regularly using this phrase: "... retained Edmunds ... as its accountant and tax adviser ...". 27The phrase "... accountant and tax adviser ..." is repeated by Dewheath's solicitors in the answer to a request for particulars dated 27 May 2009, without elaboration, seemingly as a term of art. 28The original Defence, in paragraph 5(a), admitted that the director of the plaintiff, Mr Tapp, who it is accepted, was the directing mind of the plaintiff, sought and obtained "taxation advice" from the first defendant. That phrase reflects the use of the phrase in the Statement of Claim that Mr Edmunds was retained as a tax adviser. 29The phrases "tax adviser" and "taxation advice" are ambiguous. 30It has become apparent from the evidence filed that Dewheath intended to include in that expression, an obligation upon the defendant to provide pro-active advice, namely, advice in advance of the occurrence of an event, about which he may not specifically have been requested to provide advice. The defendant on the other hand, took the phrase to mean the provision of advice if specifically requested, i.e. reactively to a request. 31The affidavit of Dewheath's solicitor, Mr Curry, has as one of the documents exhibited to it a letter written by Mr Edmunds to a solicitor, Mr Gray. Although marked "Without Prejudice" Mr Edmunds did not object to its tender. It is clear from the terms of that letter, which was written in August 2005, about three and a half years before these proceedings were commenced, that there was a significant ambiguity about, and dispute about, the existence of a retainer and, if one existed, the content of it, and the extent of the obligation owed by Mr Edmunds to Dewheath. 32The cross-examination, on the hearing of the Motion, of the solicitor for Dewheath, Mr Curry, also made it plain that he and Dewheath have always understood that the nature and content of the retainer, and the extent of the retainer, was in dispute. Mr Curry said in evidence that he had sought to address that dispute in the evidence which has been filed to date. Clearly if the Amended Defence, with respect to this paragraph, were permitted he may need to review the evidence to see what further evidence, if any, is required. There would be a cost occasioned by the amendment. 33The uncertainty about the retainer and its content can also be seen in the expert report of WHK Horwath dated 3 February 2009, which was served by Dewheath at the same time as the Statement of Claim. That report records that specific advice was sought in July or August 2002, on the GST implications of selling and leasing the residential premises. Accordingly, any advice in response would be "reactive", as I have used that term, rather than "proactive". That understanding is consistent with what Mr Little, the solicitor for Mr Edmunds, and the other defendants, took as the meaning of the ambiguous phrase which I have earlier mentioned. However, that is not the essence of the case which Dewheath now seeks to make on the evidence. 34The defendants argue that the real meaning which Dewheath attributed to this phrase only became apparent after the evidence, and that the Amended Defence seeks to correct, and make plain, the extent of the issues in dispute. 35A pleading defines the issues which are to be litigated between the parties. Pleadings form the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance: Dare v Pulham [1982] HCA 70; (1982) 148 CLR 458 at 664. 36Proper pleading is of fundamental importance in assisting courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2005; McGuirk v University of NSW [2009] NSWSC 1424 at [24] per Johnson J. 37Here the real issue is whether the subsequent pleadings and defences, ought be permitted to be amended so as to reflect the evidence which has been filed in the proceedings, and to avoid the consequences of an unintentionally ambiguous initial pleading - the Statement of Claim. 38I am satisfied that, in the exercise of my discretion, this amendment ought be permitted. The nature, content and extent of the retainer is in dispute. It is covered by the evidence. The pleading ought reflect that dispute. There is no prejudice to the plaintiff, except some incurring of additional costs, which can be remedied by an appropriate order. 39A number of the remaining admissions which are to be withdrawn, by the Amended Defence, deal with substantially similar issues, namely the existence of the retainer, and its content, including the meaning to be given to the ambiguous phrase which I have earlier described. Many of the same considerations will apply. 40The next amendment to the Defence seeks to withdraw an admission contained in paragraph 6(a) of the Defence. This paragraph admits that the plaintiff retained one of the defendant companies as its "tax adviser" between 1 July 1998 and 31 December 2002. 41Again, as I have indicated with the previous amendment, the nature, content and extent of the retainer is in issue. The plaintiff and the defendant have different views as to the meaning of the words "tax adviser". That is a matter addressed in the evidence. The pleading ought be permitted to be amended to enable this dispute to be actively litigated. There is no prejudice to the plaintiff. 42Paragraph 7 seeks an identical amendment to paragraph 6, with the exception that it refer to a different company. For the reasons I expressed with respect to the paragraph 6 amendment, this amendment ought be permitted. 43In paragraph 8 of the Defence, amendments are sought to enable the ambiguity in the phrases "taxation advice", or "tax advice" or" tax adviser" to be identified and specifically pleaded. There is no real difference in substance in the Amended Defence and the original Defence except that it makes provision consequent upon earlier amendments, enabling the nature, content and extent of the retainer to be debated at trial. 44For the reasons I have previously expressed, I would allow this amendment. 45Paragraph 9.1 again seeks to make amendments which have the effect of reflecting the debate between the parties about the nature and content of the retainer and the extent of it. The phrase pleaded in the initial Statement of Claim, was intended by the pleader to convey something more than the pleader of the Defence understood. As I have said, the term is capable of ambiguity and, in light of the evidence which has been served, it is plain that the defendant's advisers did not understand completely what it was that the plaintiff intended by his pleading. 46The central issue remains, which is the nature, content and extent of the retainer and whether there was specific advice sought, or not, with respect to the problem discovered by the ATO audit. 47The evidence addresses this matter. The Defence should be allowed to be repleaded to reflect the extent of the debate between the parties. I would allow this amendment. 48The next amendment sought, is to delete an admission to the effect that it was reasonably foreseeable that the plaintiff expected the first defendant "to advise of any adverse tax consequences of the matters and courses of action upon which [the defendant's] advice was sought". 49It seems to me that this admission reflects the defendants' real case, as I understand it to be. The defendants' real case is that advice was provided upon specific request. As the existing Defence stands, it simply admits that if the defendants' advice was sought, then it was foreseeable that the plaintiff expected the defendant to advise of the taxation consequences of the matters. I do not know, and it is unclear, what the adjective "adverse" refers to. The obligation to pay tax is imposed by law. To the extent that the sum of tax payable is that fixed by the law, it cannot be regarded as an adverse consequence. However, I do not think that the adjective is the reason why this admission is sought to be withdrawn. Rather, the application arises because there was concern expressed by counsel for the defendants that if this was not withdrawn, there would be an inconsistency about the extent of the retainer and its content between the existing Defence and the Amended Defence. 50I cannot see that inconsistency, and see no reason why this amendment ought be permitted. If specific advice was sought by Dewheath, and it was provided, it seems impossible to resist a conclusion that reliance by Dewheath was foreseeable. I do not allow this amendment. 51The final admission sought to be withdrawn is that in paragraph 13. 52This admission seems to me to be consequential upon the earlier amendments. I would permit it. 53In summary, with respect to those parts of the Amended Defence which seek to withdraw admissions, I propose to allow the amendments to the Defence, except for the amendment in paragraph 9.2(d). The Defence as originally pleaded in that respect should remain.

Additional Defences 54In considering the submissions about these additional defences, it is convenient to provide a context which is available from the evidence to which the Court was taken on the Motion: (a)according to the report of Mr A Kelly of WHK Horwath dated 3 February 2009, the component of Dewheath's damages claim referable to GST adjustment made by the ATO was $147,898 as at 28 August 2007; (b)according to the report of Suzanne Delbridge-Bailey dated 29 November 2011, the damages claimed by Dewheath fall in the range from $1.696M to $3.867M; (c)since the defendants filed their defences, which are now sought to be amended, Dewheath has incurred legal costs and expenses of about $400,000, of which about $190,000 represents solicitors costs; (d)the third defendant, Allianz Australia Insurance Ltd, offers a master policy of professional indemnity insurance for accountants which is called the "Accountants Professional Indemnity Policy". Pursuant to that master policy, each of the first two defendants, and Edmunds Buckley Associates Pty Ltd, were insured, for various periods with a limit on indemnity of $2M plus legal costs incurred with respect to a claim; (e)these policies are "claims made" policies, namely policies which provide indemnity in respect of liability arising "... from any claim first made against you ..." during the period of cover. There is a dispute as to whether the policies respond to the claims which would, but for deregistration, be made against Edmunds Buckley Associates Pty Ltd. There seems to be no dispute about the existence of a policy for the other two defendants; (f)at all times since the Defence was filed, Dewheath has prepared the matter, by retaining experts and preparing statements, giving discovery, and properly addressing the preparation of the matter, against an understanding that no issue was raised by way of a limitation defence, or else a defence limiting the recoverable sum for damages; (g)had Dewheath been aware of either or both of these potential defences, it would have undertaken its preparation in a substantially different way, including by considering seeking a separate determination of questions raised by such defences, transfer to the District Court, considering whether the expenditure of obtaining reports from the experts was properly justified as being reasonable, and consideration of whether an earlier mediation should be engaged in; and (h)the scheme pursuant to the Professional Standards Act 1994, which the defendants wish to plead, would, if applied, provide a limit on the defendants' liability for damages, to an amount "... calculated by multiplying the reasonable charges for the service by 10", which amount cannot be less than $500,000 or more than $20M".

Civil Liability Act - s 50 55It is necessary to consider the amendments which seek to add discrete defences, which were not previously pleaded. The first of these is the pleading under s 5O of the Civil Liability Act 2002. 56That provision enables a person practising a profession to escape liability for negligence if the defendant establishes that he or she has acted "... in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice." 57In other words, s 5O goes to the question of the yardstick of proper practice, by which a professional's conduct is to be judged. 58The evidence clearly establishes a real dispute between the parties about whether such advice as was provided was adequate and proper, and whether, in accordance with the ordinary practice of accountants, having regard to the terms of the retainer, the defendant was to be expected to have provided particular advice which was not provided. 59Expert opinion has been sought. The experts having provided their opinion are at issue. It will be necessary in due course, for those experts to confer and produce a joint report, in accordance with the Court's practice, setting out areas of agreement and disagreement. 60The addition of this defence, which substantially reflects the common law, does not change the substance of the expert opinion or the debate between them. It does not affect any underlying fact. There is no prejudice pointed to by the plaintiff. 61Whilst it ought to have been pleaded initially, I can see no reason why this pleading ought not be allowed, and I will allow it to be pleaded.

Contributory Negligence 62In paragraph 23 of the proposed Amended Defence, the defendant seeks to plead that the plaintiff itself contributed to its own loss and damage by failing, shortly put, to have taken prudent steps about the assessment of the financial feasibility, and other related financial aspects, of the development. As well, the particulars include a failure to keep proper written records, failure to have records which enabled the timely and proper preparation of income tax returns and BAS returns, and failure to prudently provide for adequate contingency margins in the costs assessments related to the profitability of the development. 63Having regard to the evidence of Mr Curry, the solicitor for Dewheath, I am satisfied that he, as an experienced litigation solicitor, is not caught wholly unprepared by the proposition that his client by acting negligently may have contributed to its own loss. 64In any event, it is apparent from the submissions of the defendants, that regardless of this proposed amendment to the pleading, a real issue arises as to how much of the loss is to be, or can properly be, attributed to the negligent conduct pleaded in the Statement of Claim. It is apparent that the plaintiff claims a significant sum of damages, and the defendant submits that, even if it is liable, only a much smaller sum is attributable to its conduct. 65The plea of contributory negligence does not, in my assessment, do anything to extend the factual dispute between the parties. It formalises the issues between the parties with respect to an allowable defence, which is not different in substance, in my assessment in the facts of this case, from the question of which conduct caused which damage. 66I can see no prejudice to the plaintiff, and none is claimed. I will allow this pleading.

Civil Liability Act - s 35 67The third defence which is sought to be added in the Amended Defence is one of the existence of a concurrent wrongdoer. The first concurrent wrongdoer pleaded is Mr Tapp, who is the director and directing mind of Dewheath. The particulars pleaded with respect to the concurrent wrongdoing of Mr Tapp, are the same or substantially the same as the particulars pleaded of contributory negligence. There is no difference in substance between these parts of the pleadings. There is no reason why this pleading, which is an alternative to contributory negligence, ought not be allowed. 68Dewheath submitted that it was prejudiced by this amendment because it was now out of time to file a cross-claim against Mr Tapp. It is not an easy question to determine whether any cross-claim would be out of time, and it is unnecessary for me to make such a determination. That is because, having regard to the relationship between Dewheath and Mr Tapp, namely that he is the sole director and shareholder of Dewheath, I do not regard the loss of the ability to lodge a cross-claim, if that be established, as creating any prejudice to Dewheath. Whilst the evidence establishes that people other than Mr Tapp lent money to Dewheath for the purpose of the subject development, there is no evidence that those "investors" who are not parties to these proceedings, would be adversely affected by the inability of Dewheath to cross-claim against Mr Tapp. 69Accordingly, I am not satisfied that Dewheath has established the prejudice which it claims. 70The second concurrent wrongdoer identified in the amended pleading is Mr Roger Gray, who was Dewheath's solicitor at all relevant times. 71It is apparent from the evidence that a claim was made by Dewheath against Mr Gray for monetary compensation for his alleged negligence. That claim, which did not come to litigation, was resolved by LawCover, the indemnity insurer for Mr Gray, making a payment of a sum which Dewheath agreed to accept. 72In essence, the subject matter of the claim was that the conduct of Mr Gray had caused, or else materially contributed to, a significant delay in the settling of the sales of the units which had been sold off the plan. It was claimed that the delay resulted in some sales not proceeding to completion. It was said that this delay, including the loss of those sales, then occasioned loss to the plaintiff, and contributed to the decision to retain some units and lease them out. 73The issue of substance is whether the monies received from LawCover relate to the same loss as that which is claimed in these proceedings. That is a live issue. It is a live issue because there is a question raised in the defendants' case about the causation of loss, and whether the entirety of the loss is recoverable. 74In my assessment this pleading does nothing more than express, in a different way, that same causation of damages question. There is no reason not to allow this claim, and I do so.

Professional Standards Act 1994 75The next additional defence which the defendants wish to add to their pleading, is one pursuant to the Professional Standards Act 1994. This pleading claims that because the defendants were each a member of CPA Australia, which had in operation a scheme under the Professional Standards Act, there is in operation a cap on the total sum for civil liability for members of the scheme. It is pleaded that the cap is a maximum of $500,000 for any award of damages and interest and order for costs. 76Dewheath's total claim for damages exceeds, by a very significant sum, this cap. At its upper limit, the plaintiff submits that it may be entitled to recover $3.867M in damages plus interest and costs. 77Although a draft of a proposed Amended Defence was served in August 2011, which included this defence, this Motion is the first attempt to permit an amendment to plead such a limitation. 78The only reason advanced by the defendants for the pleading of this defence is that it was thought of as being appropriate, when counsel was changed, and a new counsel was briefed. 79As I have pointed out earlier, Dewheath submits, and Mr Curry's evidence is, that it would have conducted the litigation very differently had the maximum sum for damages been limited to $500,000 as the scheme apparently provides. 80I accept this evidence. A prudent solicitor acting for a party to litigation which can only recover a maximum of $500,000 is unlikely to spend significant sums on expert witnesses, and attempting to prove damages which exceeds that sum. In other words, the proof of a claim for $500,000 in circumstances such as the present, is considerably easier, less expensive and less demanding that would be proof of a claim for $3.867M or more. I am satisfied that considerable expense has been incurred already in proving Dewheath's claim for the higher sum of damages. It is not easily possible to provide for orders which would remedy such expense. The delay in seeking this amendment is not adequately explained. 81The existence of a scheme under the Professional Standards Act for accountants was known to the defendants themselves. 82The evidence on the motion includes a letter written by Mr Edmunds, on the letterhead of Mark Edmunds Associates Pty Ltd, dated 14 June 2005, which includes this printed line: "Liability limited by the Accountants Scheme, approved under the Professional Standards Act 1994 (NSW)" 83The letter of Mason Lawyers, the law firm representing Dewheath, sent to TressCox, the defendants lawyers, contained a similar statement to this effect: "Liability limited by a scheme approved under Professional Standards legislation" 84The letter of TressCox to Mason Lawyers, also contained a statement to like effect. Allianz Australia was at the relevant time an insurer which, under its master policy of professional indemnity insurance, insured accountants who were members of the Accountants Scheme under the Professional Standards Act. 85There is no question, but that the existence of the Accountants Scheme, and its effect on the limitation of liability, was well known to the lawyers involved, Mr Edmunds, and Allianz Australia. Whether advantage was to be taken of the limitation of liability was a matter for the defendants. If advantage was to be taken, a pleading to that effect was necessary in the defence. It was open to the defendants not to plead the defence, thereby signifying that they did not propose to rely upon it. 86It was entirely reasonable for Dewheath's solicitor to form the view that in the absence of such a specific pleading, the defendants had waived their right to rely upon such limitations of liability, and to proceed to the preparation of Dewheath's claim, on the basis that the available cap was not to be relied upon by the defendants. 87The best that can be put on behalf of the defendants is that such a defence seems to have been overlooked when the Defence was originally filed. This is not an adequate reason in circumstances where the defence is so well known. New counsel, no doubt attentive to all of the possible ways of defending the proceedings, has advised that the matter should be raised. There is significant prejudice to the plaintiff in raising it now. 88I have considered whether or not such prejudice could be cured by an order for costs, but it seems to me that it would not be possible to untangle the costs referrable to preparation of a larger claim. More importantly, an opportunity has been lost for a much earlier settlement of the proceedings which, in my assessment, would be much more likely if the claim was limited as it is now sought that this claim ought be. 89In short, the proposed amendment to add this defence comes too late in the proceedings, no adequate explanation is offered for why it has only come to be pleaded now, the existence of the scheme was well known and ought to have been pleaded initially, over three years ago, and significant prejudice would be occasioned if the amendment was permitted. 90I do not permit this proposed amendment.

Limitation Defence 91Finally, the defendant seeks to add a limitation defence. It is alleged that some or all of the plaintiff's claim is statute barred under s 14(1) of the Limitation Act 1969. 92A limitation defence, under this legislation, is something which must be pleaded. It is a defence which can be waived. Hence, the importance of it being pleaded. 93For reasons similar to those which I have just expressed with respect to the limitation of the claim for damages, I am not satisfied that this Limitation Act pleading ought be allowed. 94First, it comes very late in the proceedings. Secondly, in the absence of a limitation defence, Dewheath was entitled to proceed upon the basis that the defendants were not relying upon any limitation defence, and that it had been waived. Dewheath's solicitor reasonably took that view. 95Thirdly, the task of preparation for, and expenditure of money upon, a case where a Limitation Act defence is raised, is often very different from the preparation for a case in which it is waived. One possibility, although not universally so, is that one of the parties may seek that a separate issue be determined with respect to the Limitation Act defence. Alternatively, a reply might be pleaded which sets out a range of facts, matters and circumstances upon which the plaintiff relies to contradict the pleading of the Limitation Act defence. 96Fourthly, here no adequate explanation is offered as to why the defence was not pleaded earlier. I do not accept that the availability of a limitation defence only became apparent when all of the evidence had been filed and served. Nor did the defendants persuasively point to any part of the evidence which had first emerged, and of which they did not know, which has given rise to this limitation defence. 97This is a late defence, for no good reason which causes prejudice. It ought not be permitted.

Conclusion 98I will grant leave for the Amended Defence to be filed. 99However, I will not allow the amendment contained in paragraph 9.2(d), nor will I allow paragraphs 25 and 26 of the proposed Amended Defence.

Costs 100The amendment to the Defence has largely been necessitated by the insertion of new counsel into the proceedings, and the defendants' failure to properly appreciate the inadequacy of the original Defence. I see no reason why the defendants should not pay the plaintiff's costs of and occasioned by the amendments. 101The occasion for this amendment application was a discrete occasion and took place over a number of days. I see no reason why the plaintiff should not be able to proceed to an assessment of those costs forthwith. 102I doe not see any reason why costs ought be ordered on anything other than the ordinary basis.

Orders 103I make the following orders: (1)Leave to the defendants to file and service an amended Defence on or before 4pm 31 May 2013. (2)I order the defendants to pay the plaintiff's costs of and occasioned by the amendments on an ordinary basis. (3)I order that such costs be paid forthwith. (4)I grant leave to the plaintiff to proceed to an assessment of costs. (5)I stand the proceedings over for further directions to 9am on 7 June 2013 before the Registrar.

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: 17 May 2013