Solicitors:
Cornwalls (Plaintiff)
YPOL Lawyers (First, Second and Third Defendants)
Nelson McKinnon Lawyers (Fourth and Fifth Defendants)
File Number(s): 2016/257478
[2]
EX TEMPORE Judgment (REVISED)
This is the fourth day of a seven day plus hearing. The plaintiff's lay evidence has concluded; its four lay witnesses have been cross-examined. As I understand it, apart from the expert evidence to be adduced by the plaintiff, the plaintiff's case is now, in effect, closed.
By Notice of Motion filed in Court this afternoon, the plaintiff seeks leave to amend its List Statement in accordance with the document which I have marked MFI-10. A form of the proposed amendment very closely approximating that document was circulated very early the morning of 16 March 2022.
The evidence in support of the application to amend includes evidence that on the second day of the hearing, Tuesday 15 March 2022, counsel reviewed documents produced, admittedly very recently, on discovery by the defendants, and that that review has some connection with the proposed amendment.
The amendment was evidently prompted by, or at least followed, Mr Pritchard SC, who appears with Mr Fernon SC and Mr Macauley for the first to third defendants, handing up an aide memoire document pointing out the "un-pleaded" allegations referred to in the opening submissions.
The proposed amendment is to add to par 15 of the List Statement a large number of particulars as follows:
"In order to promote the development of the Kingswood Land and the Hospital Land, the third defendant, on behalf of the first and second defendants, on a date not known to the plaintiff, but before about 16 February 2011, formally or informally appointed or induced Christopher Wayman ("Mr Wayman") to:
(a) obtain Mr Gilmore as an investor to fund the development of the Kingswood Land and to fund the acquisition and development of some or all of the Hospital Land (the "Projects" or the "Kingswood Project" or the "Hospital Project"); and
(b) project manage the Projects.
Particulars
The appointment or inducement of Mr Wayman is inferred from, and evidenced by, matters including:
(i) Mr Wayman was a client of Yates Beaggi Lawyers from about March 2009, and the Third Defendant acted for him (Mr Amirbeaggi's affidavit [115]: CB p 305);
(ii) In about July 2010 Mr Wayman and the Third Defendant met in Sydney and discussed the Kingswood Project (Mr Amirbeaggi's affidavit [121]: CB p306);
(iii) On 19 July 2010 the Third Defendant sent Mr Wayman feasibility data and a building quotation for the Kingswood Project (Mr Amirbeaggi's affidavit [126]: CB 308);
(iv) On 21 July 2010 at 2:04pm Mr Wayman emailed the Third Defendant about commissions and fees for all projects (Discovery made on 14 March 2022);
(v) On 20 January 2011 the Third Defendant sent Mr Wayman a detailed spreadsheet costing from Southern Cross Constructions for the Hospital Project (Mr Amirbeaggi's affidavit [126] CB p 308, Tab 29 Exhibit FA-1: CB 1140);
(vi) In about late January 2011 Mr Wayman contacted Mr Gilmore to discuss investing in the Kingswood Project and the Hospital Project, and on 25 and 30 January 2011 and 7 February 2011 sent plans and feasibility studies to Mr Gilmore for these projects (Mr Gilmore's First Affidavit at [31]-[34]: CB p 239);
(vii) On multiple occasions prior to 15 February 2011 the Third Defendant said, in conversations to which Mr Wayman and Mr Armstrong were a party, words to the effect:
A. that they needed to get Mr Gilmore to invest in the Kingswood Project or it could not proceed;
B. Mr Gilmore was not to know that he was putting in more money than the other investors.
(Evidence of Armstrong)
(viii) In about the first two weeks of February 2011 Messrs Wayman and Armstrong met with the Third Defendant in Sydney on one or two occasions about the Kingswood Project, at which times there were discussions by the Third Defendant that: (1) Mr Wayman should be employed as its project manager for $125,000pa through a company to be incorporated (later to be Developmentcom Pty Ltd (Devcom)); (2) Mr Armstrong would be the director of Devcom; (3) another company to be called 182-190 Great Western Highway Pty Ltd would be the joint venturer to represent the interests of Messrs Wayman, Armstrong, Hollioake and Gilmore in the Kingswood Project for $1.75M and Mr Armstrong would direct that company; that Mr Gilmore was needed to invest $1.75M in the Kingswood Project via 182-190 Great Western Highway Pty Ltd or the project would fail; Mr Gilmore must think that all investors are contributing to the Kingswood Project on the same basis, and that he must not know that he is the only person putting in cash (Evidence of Armstrong: CB pp1573 - 1582);
(ix) Mr Wayman arranged for Mr Gilmore to attend Sydney on 16 February 2011 to be able to visit the Kingswood Site in the company of Messrs Wayman, Armstrong and Hollioake, and the Third Defendant's law firm arranged for a minibus to be available as transport (Mr Amirbeaggi's Affidavit at [157], [161] and [164]: CB pp317 - 318);
(x) Messrs Wayman, Armstrong, Hollioake, Yates and the Third Defendant participated in the minibus excursion on 16 February 2011 as described in paragraphs 23 and 24 below (Mr Amirbeaggi's Affidavit at [157] & [163]-[164]: CB pp 317 - 318);
(xi) Mr Wayman requested the plaintiff deposit monies into the trust account of the firm Yates Beaggi Lawyers for the Kingswood Project;
Email dated 31 January 2011.
(xii) On 22 February 2011 at 12:16pm and 12:26pm Mr Wayman sent emails to Mr Gilmore with details about the Kingswood Project and the Hospital Project together with the details of Yates Beaggi Lawyers' Trust account (Mr Gilmore's affidavit at [46] & [47]: CB p 241);
(xiii) Mr Wayman confirming he will pass on information to the third defendant;
Email dated 25 February 2011.
(xiv) Correspondence from the third defendant to Mr Gilmore regarding Mr Wayman and the third defendant making arrangements for the construction contracts for the Kingswood Project;
Email dated 1 March 2011.
(xv) Correspondence from the third defendant confirming Mr Wayman has been engaged as project manager;
Email dated 9 March 2011.
(xvi) The Third Defendant purchased a BMW X5 from a wholesaler for Mrs Wayman for $80,000, on the basis the Waymans traded in two cars for $30,000. Those trade in vehicles turned out to be encumbered for $30,000, so the Third Defendant paid out that encumbrance. Mr Wayman was first seen driving in this vehicle by Mr Armstrong after about 24 May 2011 (Mr Armstrong's affidavit [34]: CB p 608; exhibit GDA-1 at p29: CB p 1732).
(xvii) At the time of the purchase of the BMW X5, Mr Wayman was bankrupt (Search CB p 8890), the inference being that the purchase was a reward from Mr Wayman persuading Mr Gilmore to invest in accordance with wishes of the First and Second Defendant as conveyed by the Third Defendant at subparagraph (vii) above." (Emphasis in original.)
It is also proposed to add to par 90 of the List Statement a reference to par 15, to in effect incorporate the allegations in par 15 into those in par 90.
It is common ground that there is no difficulty with the amendment proposed in the chapeau to par 15, the amendment proposed in par 15(a), nor that in subpar (iv) to par 15(b) (which refers to a document discovered only in the last few days).
However, the balance of the amendments sought relate to, or are said to arise from, evidence which has been in the plaintiff's possession for a considerable time. The substantial argument in favour of the amendment is to "align" the evidence and the pleadings; however, the fact is that as I have said almost all the evidence that is now sought to provide a basis to add particularity in par 15(b) has been available for some time.
The proposed particulars in pars 15(b)(i), (ii), (iii), (v) and (ix) are said to arise from Mr Amirbeaggi's affidavit. That affidavit was served in May of last year. It is true that there was a dispute about the adequacy of the pagination and other like matters to that affidavit which resulted in a revised version of that affidavit being served in August 2021. Nonetheless, the document has been in the hands of the plaintiff's advisors for nine odd months.
The delay incorporating the material from Mr Amirbeaggi's affidavit into the pleading is said to have been because of the "interlocutory steps" that had been taken since August 2021. It is true there has been much activity, particularly in the new year, concerning discovery but I cannot see how that provides an adequate basis for this pleading to be foreshadowed only on the third and fourth days of the hearing.
Proposed particulars 15(b) (vi) and (xii) are said to arise from Mr Gilmore's first affidavit, served in October 2020. No explanation has been given as to why it is only now that that material is sought to be incorporated.
Proposed particulars 15(b) (vii), (viii) and (xvi) are said to arise from the evidence given by Mr Armstrong. In his affidavit, Mr Armstrong gave the critical evidence relied upon by the plaintiff to show that Mr Amirbeaggi, in effect, asked Mr Armstrong and perhaps Mr Wayman to misrepresent to Mr Gilmore the level of the former's investment in the relevant project. The balance of the "evidence" of Armstrong is that given in cross-examination over a day when Mr Pritchard SC sought to challenge that evidence. However, the substance of the matter is that Mr Armstrong's version of events has been in the plaintiff's hands since October of last year. I do not see what justification there could be now to "align" the pleading to that evidence halfway through the trial.
Finally, as to subpar (xvii) to par 15(b), reference is there made to an email which the plaintiff now accepts has been in its possession for some time.
As to the proposal to incorporate by reference the allegations in par 15 into par 90, it is not clear to me what the implications to the defendants would be of doing that. Whatever they are, I do not consider the defendants should have to face them at this stage of the proceedings.
For those reasons, I propose to allow the plaintiff to amend the List Statement by adding in the change proposed in the chapeau to par 15 and in par 15(a) and to add the particular (iv) in MFI-10, to those already appearing in the List Statement in relation to par 15(b).
Otherwise, the motion is dismissed with costs.
[3]
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Decision last updated: 22 March 2022