//
[2015] VSCA 79
General information, not legal advice.
Court of Appeal (Vic)
2015-05-04
Mr P, Sloss J, Osborn JA
Original judgment source is linked above.
Deputy Commissioner of Taxation v Haritos & ors [2014] VSC 379 (Sloss J)
DECLARATORY RELIEF - Appeal against grant of declaratory relief - Commissioner obtained declaration that defendant company on register as shareholder was beneficially entitled to shares held - Commissioner relied on contemporaneous corporate documents as prima facie evidence of beneficial ownership of the shares in company - Whether trial judge erred by failing to consider evidence of a witness called by the defendants - Whether trial judge failed to provide adequate reasons for not accepting that evidence - Whether trial judge erred in finding that beneficial ownership of issued shares in a company was held by company on register as shareholder - Appeal dismissed.
PRACTICE AND PROCEDURE - Whether trial judge erred in refusing leave to amend pleading - Civil Procedure Act 2010.
1 This appeal concerns the beneficial ownership of the total issued capital of four shares in Jinacan Pty Ltd. Jinacan's only asset is a commercial property comprising a supermarket at 624 Sydney Road, Brunswick. That property is conservatively valued at $8.5 million.
2 On 29 August 2014, Sloss J granted to the Commissioner a declaration that the beneficial owner of the four shares in Jinacan is the fourth defendant, Glen Geriatric Services Pty Ltd (in liq) ('Glen') and a further declaration that purported declarations of trust made by the appellants with respect to such shares in August 2006 were void, invalid and of no effect.
3 It is the first of these declarations which is the focus of the present appeal. In essence, the appellants contend that the trial judge failed to properly take into account the evidence of an accountant, Mr Leon Moscovitch, who was involved with the institution and making of Jinacan's corporate records. Counsel for the appellants encapsulates the critical issue as follows:
Before granting a declaration, a court must weigh up all relevant evidence and feel actual persuasion of the matter to be declared. At trial, a witness called by the defendants gave relevant evidence without objection that refuted the plaintiff's claim but differed from the defendant's pleaded defence. Did the primary judge err by disregarding that evidence without explanation?
4 In turn, it is submitted that once Mr Moscovitch had given his evidence the primary judge:
(a) was not entitled to disregard it (ground 2);
(b) should have allowed the amended defence to accord with that evidence (ground 3);
(c) was obliged to but did not give adequate reasons for any conscious decision not to accept the evidence (ground 5); and
(d) should have accepted it and dismissed the proceeding (ground 1).[1]
5 For the reasons which follow, I am not persuaded that her Honour did relevantly disregard the evidence in issue, nor that if regard is had to it by this Court, that it establishes error in her ultimate conclusions. Nor, in my view, did she err in refusing leave to further amend the defendants' pleaded defence.
6 Before turning to the evidence in issue and to her Honour's reasoning, it is convenient to say something further about the factual background to the dispute.
7 In 1981 George Haritos and Alex Kyritsis registered Glen (then known as Robcamb Pty Ltd) and became its initial directors and shareholders. George and Alex each held one of two shares, comprising the total issued capital of Glen. Glen carried on a contract cleaning business until late 2004 under the name 'AES Property Services'.
8 Jinacan was registered on 11 August 1987. On 23 August 1987 it was acquired 'off the shelf' by George, Alex, and their wives, Effie and Betty. Mr Moscovitch's firm, Gillards Accountants ('Gillards'), then became involved in the production of the corporate records of Jinacan. Mr Moscovitch took instructions from George.
9 Jinacan's books and records and documents lodged with the Australian Securities and Investments Commission recorded that the corporate structure established on 25 August 1987 was one in which the shareholders of Jinacan were Glen (as to three shares, legally and beneficially) and George (as to one share held on trust for Glen). George, Alex, Effie and Betty were each directors of Jinacan. Subsequent minutes of meetings and other documents in the company register were prepared by the accountants and were overwhelmingly consistent with that position.
10 On 19 November 1987 Jinacan was registered as the sole proprietor of the Sydney Road property. Thereafter this remained Jinacan's only asset.
11 Jinacan's only business was to collect the rent received under the lease of the Sydney Road property, save for a period of around 12 months when it operated a supermarket business from the property.
12 Glen ceased trading at the end of 2004 and its assets and goodwill (not including the four shares in Jinacan) were acquired by a new corporate vehicle named AES Services (Aust) Pty Ltd ('AES'). This was again controlled by George and Alex.
13 Glen was placed in liquidation pursuant to a creditors' voluntary winding up in October 2006 and was dissolved on 19 May 2008. The Commissioner was an unsecured creditor of Glen in the amount of $514,093.87. The Commissioner received no dividend from the winding up.
14 Subsequently, it was ascertained by the Commissioner that the corporate records of Jinacan showed that Glen was its beneficial owner between 1987 and 2006. The appellants contended however that the corporate records were incorrect and that, at all material times, Effie and Betty were the beneficial owners of two shares each in Jinacan.
15 Reliance was also placed by the appellants upon three declarations of trust dated 11 August 2006 which purported to state that George held one share on trust for Effie, that Glen held two shares on trust for Betty and that Glen held one share on trust for Effie.
16 The minutes of a meeting of the directors of Jinacan dated 11 August 2006 record a change of beneficial owners reflecting these declarations.
17 Proceedings were issued on behalf of the Commissioner seeking declarations as to the true beneficial ownership of the shares.
18 On the trial, the Commissioner relied on a raft of documentary evidence comprising records of the company structure established at the time George, Effie, Alex and Betty first acquired any interest in Jinacan, ongoing company records evidencing the continuation of that structure until 2006, and the payment of dividends by Jinacan to Glen and doing of other acts directly confirming that structure.
19 The appellants called evidence in turn from Betty, Mr Moscovitch, Effie and George. The evidence of Betty, Effie and George was that it was intended from the outset that Jinacan would be beneficially owned by Betty and Effie. For reasons which need not be elaborated at this point, that evidence was not persuasive.
20 Mr Moscovitch gave evidence of his recollection of instructions received by him from George some 27 years earlier, to the effect that George intended that Jinacan would be owned by George, Effie, Alex and Betty.
21 There is disagreement between the parties as to the thrust of Mr Moscovitch's evidence. As the agreed summary of facts puts it:
11.3. The parties do not agree as to the thrust of Mr Moscovitch's evidence.
(a) The appellants submit that save for explicable aberrations, the theme of Mr Moscovitch's evidence was that George instructed him to set up the shareholding in Jinacan so that each of Betty, Effie, George and Alex held one share each.
(b) The [Commissioner] submits that the critical aspects of Mr Moscovitch's evidence were as follows. Mr Moscovitch gave evidence that George told him that the Sydney Road Property was an investment to provide an income stream for the families for later on if anything happened and that it was owned by George, Effie, Betty and Alex. Mr Moscovitch said that he advised George that if that was George's intention, then he would not have set the company structure up in that way [ie the way it was]. He said that George confirmed that he wanted to leave the structure as it had been set up, that is with Glen holding three shares legally and beneficially, and with George holding the fourth share on trust for Glen. Mr Moscovitch rejected the suggestion that the company books and records were inaccurate.
22 Almost at the conclusion of his final address, counsel for the appellants sought to amend the appellants' defence to allege, in the alternative to the claim that the shares were beneficially owned by Effie and Betty, a claim that the four shares in Jinacan were beneficially owned by George, Effie, Alex and Betty. The trial judge refused this application having regard in part to the point in the trial at which it was made and the overwhelming probability that the Commissioner's case would have been conducted differently if the alternative allegation had been pleaded earlier.
Nevertheless, it does follow, that even if I do not allow the amendment, I am going to have to deal in my reasons with the fact that that evidence has been given during the course of the case. And that may well be of some relevance in the context of the relief that is sought by the deputy commissioner, which is a declaration. The point has been made in submissions that the declaration is only binding on the parties to the proceeding, but nevertheless the evidence has been given before the court and it is evidence that I will have to take account of.
Principles governing the grant of declaratory relief
24 Her Honour's observations are to be understood in light of the principles governing the onus borne by a plaintiff seeking declaratory relief of the type in issue. At trial, counsel for the appellants submitted that the onus lay upon the Commissioner to negative any claim inconsistent with the declaration sought. Her Honour dealt with the point as follows:[2]
In support of this contention, Counsel relied on a decision of McClelland CJ in Equity in Massoud v NRMA Insurance Ltd[3] where the question of onus in the context of declaratory relief was considered and dealt with in some detail by his Honour. Massoud was a case where the defendant, an insurer, had cancelled Mr Massoud's policy, on the basis (so it alleged) that he had knowingly made false statements in connection with a claim. Mr Massoud responded by issuing proceedings seeking declaratory orders that the insurer's purported avoidance of the policy was wrongful and void. McClelland CJ found that a declaration having been sought, Mr Massoud was required to prove that he had not made false statements, notwithstanding the fact that if the matter had proceeded in the usual way, the legal or evidentiary onus may have been the other way. His Honour summarised the guiding principles by which the incidence of the onus of proof is to be determined, as follows:
(1) a party who seeks relief has the burden of satisfying the court of facts which (in the absence of proof of other facts) would justify the grant of that relief;
(2) what those facts are depends primarily upon:
(a) the nature of the relief sought; and
(b) the operation of any relevant presumptions;
(3) in the case of relief by way of declaratory order, the precise terms of the declaration assume particular significance in that (subject to any relevant presumption) the party seeking the declaration has the burden of proof of any matter which is a necessary element of the declaration sought (even if in proceedings by that party for relief of another kind, or in proceedings by the other party, that matter would not arise unless raised (and the burden of proof consequently assumed) by the other party).[4]
See also Hume v Munro (No 2)[5] where Latham CJ said:
... In an action for a declaration that a right alleged to be claimed by the defendant does not exist the onus rests upon the plaintiff of establishing first that a claim sufficiently definite and intelligible in its terms to be a proper subject of adjudication has been made against him by the defendant. ... Next, the plaintiff seeking a declaration denying any possible foundation for the alleged claim of right must exhaust the possibilities and show that the claim cannot possibly be supported. It is not for the defendant in such a proceeding to make a claim and to justify that claim.[6]
25 In so doing, the trial judge correctly stated the relevant principles.
26 In effect, the appellants now contend that if the whole of the evidence is considered, the evidence of Mr Moscovitch identifies a competing claim, which her Honour did not properly consider and could not, without further reasons, properly exclude.
27 The appeal raises the four following central issues:
(a) What was the effect of the evidence of Mr Moscovitch?
(b) Did the trial judge fail to have proper regard to that evidence?
(c) Was that evidence sufficient in any event to establish a competing claim?
(d) Was her Honour correct to refuse to amend the pleadings?
28 The central issue postulated by the appellants' counsel is premised upon the proposition that the evidence of Mr Moscovitch 'refuted the plaintiffs' claim'. There is a threshold dispute as to whether this is so.
29 In August 1987 at the time when the Sydney Road property was purchased Gillards provided accounting services to both the Haritos and Kyritsis families and their businesses. Mr Moscovitch was a director of Gillards. He said that he first undertook work for the Haritos and Kyritsis families and associated entities in 1986. In particular, he undertook work for Glen (then A&JP Cleaning Service Pty Ltd) and Jinacan in 1987. Mr Moscovitch supervised the accounting work performed by members of Gillards' staff for these companies. Gillards also prepared individual taxation returns for George, Effie, Alex and Betty. Mr Moscovitch said these were prepared on the basis of instructions and information provided by the husbands and in particular George but never from their wives. Gillards was also involved in incorporating other entities used for business purposes by the two families.
30 Mr Moscovitch gave evidence of his best recollection of conversations with George in relation to Jinacan which took place some 27 years earlier. The trial judge accepted that, in contrast to the appellants, this evidence was substantially truthful:
Mr Moscovitch gave his evidence candidly and frankly. He said that he had suffered some health issues and had gone through an illness in May 2006. He acknowledged that there were some matters he could not recall, and that
sometimes he could not readily explain what had taken place. But for the most part, in giving his evidence, Mr Moscovitch sought to assist the Court.[7]
31 As the appellants emphasised, the trial judge further concluded amongst other things that the consistent theme of Mr Moscovitch's evidence, when viewed as a whole, was that the shares in Jinacan were held beneficially by George, Effie, Alex and Betty as to one share each.[8]
32 In order to understand Mr Moscovitch's evidence it is necessary to set out in further detail the steps taken to effect the purchase of Jinacan by the Haritos and Kyritsis families. Her Honour summarised the relevant matters as follows:
Share transfers and initial declaration of trust on 25 August 1987
Resolved that the following transfers as submitted to the Meeting be approved and that the new share certificates be issued to the transferee under the common seal of the company.
G. Haritos (held in trust for A. & J.P. Cleaning Service Pty Ltd)
I/We the undersigned [George Haritos] hereby declare that the following shareholding registered in my/our name in the following company/ies is held by me/us IN TRUST FOR the undermentioned beneficial owner.
I/We further declare that I/We have no title right or interest whatsoever in the said shareholding and agree to deal with the said shareholding at such time and in such manner as the undermentioned beneficial owner may require.
33 It can be seen that after the initial transfers of shares in the shelf company and the issue of the further shares on 23 August 1987 the position was in fact that each of George, Effie, Alex and Betty held a single share in Jinacan and each of them had also been appointed as a director.
34 On or about 25 August George gave Gillards instructions in the matter and Mr Moscovitch believed that Gillards' work probably commenced with the share transfers dated 25 August 1987. These share transfers had the effect of divesting the four individuals of their ownership of the shares save for George, who received a transfer back from Glen and declared that he held that share on trust for Glen.
35 Mr Moscovitch said that George gave him instructions as to his intentions after the shares had been transferred to Glen. This context is important to the understanding of the conversations he described. The individuals had been divested of their shares and there had been a transfer of one share back to George accompanied by a declaration of trust with respect to that share.
36 Mr Moscovitch's evidence as to the intention expressed by George was somewhat inconsistent. In the first instance, he said that George stated it was intended that the structure adopted benefitted all four of the family members:
Did you have some discussions with Mr Haritos at that time about Jinacan and what it would do, or what it did?---Discussions - when I - when I got the file or shortly thereafter, I would have looked at the file and noted that shares were held by AES Property Services and I asked George why it was that way and he said it was an investment for the family for later on if anything happened, it was owned by George and Effie, Betty and Alex and I asked why their shares weren't in their - their names and he said he didn't want the wives involved directly. He didn't want their names to appear. He handled everything and that was the way he treated it. It was his way of operating, that he didn't want his - wives' names involved in it at the time.
37 Subsequently, in response to a leading question, he said as follows:
And you told Her Honour a few moments ago that you were instructed by George that this was to be owned by the four individuals?---The beneficial owners of the shares were the individuals, yes.
Are you able to explain to Her Honour why it is that this - if it was prepared in your office this Tab 44 document [minutes of the directors meeting of Jinacan on 25 August 1987] doesn't reflect that?---I can't explain that, I'm sorry.
Did you have any conversations with Mr Haritos about the reason why they had decided to purchase this supermarket in Sydney Road?---Ah, it - it was a retirement situation that if anything happened to George or Alex, or they were unable to work, that they would be able to have income to - to live on down the line. It was their - their form of superannuation.
38 It can be seen that the underlying intention last described was to provide for George and Alex.
39 Shortly after, also in examination in chief, however, Mr Moscovitch went on to describe the transaction as intended to benefit Effie and Betty:
When Mr Haritos came to you with Jinacan and the purchaser of the property, were there discussions about shareholding, the shareholders of Jinacan?---I brought up with George the issue of why the shares were owned in the company.
And what was George's answer?---And George's answer to that was that he did not want to involve the wives' names in - or the wives in the company at that time but they were the beneficial owner of shares.
What was your response to that?---I didn't necessarily agree with it and had - I did point out to George had he - because George brought all the documents to me initially and I said I would not have set the structure up that way but that was the way George was, being he's - being of Greek background his attitude was that he handles all the affairs, his wife has no direct involvement even though it's for her benefit. He's grown up that way, he's brought his kids up that way - - -[10]
40 In cross-examination Mr Moscovitch agreed that the conversations occurred 27 years previously but said some of what was said was relatively clear in his recollection. He then confirmed that he queried the efficacy of the corporate structure adopted as an appropriate vehicle for the intentions George expressed. He further confirmed that George instructed him to retain that structure.
Yes. Well, which bits of it are relatively clear? Just tell Her Honour?---I am very aware of the fact that we had discussions about the way the - the, ah, structure was set up and why the shares were in the name as it was.
Yes. And you'd agree with me, wouldn't you - you said to [counsel for the defendants] that you wouldn't have - you wouldn't have set up the structure in the way in which Mr Haritos wanted the structure set up. Do you recall that?---Um, that is correct, yes.
And that's because you knew - well, you understood that the structure that you were instructed to set up was the legal framework for the acquisition of the property in Sydney road in Brunswick, wasn't it?---I didn't set up the structure for the purchase of the property.
Yes?---Mr Haritos would have come in with the company and with the details of the purchase of the property.
He's the one who told you, I take it, to put - that he wanted the shares in Jinacan to be owned by Glen in the case of three of the shares and in the case of the fourth share to be owned by Mr Haritos ?---They were already in place. I did not
That was already in place?---That was already in place. My only question was why? He said, 'It is for the family but I don't want the wives' name in it.'
41 In further cross-examination he characterised the shareholding arrived at as not being the way it was meant to be. The beneficial owners were meant to be the individuals. It was put to him that this was why he had told George that he would not have set up the structure in that way and he agreed that this was correct. Further cross-examination relating to this issue culminated with the following exchange:
Well, when you said to George, 'George, I wouldn't have set the structure up this way', what did George say to you? ---He wanted to leave it that way.
Why?---He did not want the - the girls' names involved directly.
42 I have set out the above evidence in some detail because it demonstrates the appellants' case falls at the first hurdle. True it is, as her Honour found, that the recurrent theme of the evidence of Mr Moscovitch was that George told Mr Moscovitch the transaction was intended to give beneficial ownership of the shares in Jinacan to the four individuals. But, the evidence also made clear that, whereas this was the situation prior to the transfers and declaration of trust on 25 August 1987, those transfers put a corporate structure in place which was entirely inconsistent with this intent. When Mr Moscovitch questioned the appropriateness of this structure he was specifically instructed to leave it in place.
43 It follows that the effect of the evidence was as contended for by the Commissioner in the agreed summary of facts. It was not the fact that Mr Moscovitch was instructed to set up the shareholding in Jinacan so that each of Betty, Effie, George and Alex held one share. In turn her Honour was correct to conclude:
It is clear that Mr Haritos' instruction to Gillards was that the structure, with the corporate entity holding the beneficial interest in all four Jinacan shares, was the one that had been chosen and was to be followed.[11]
Did the trial judge fail to have proper regard to the evidence of Mr Moscovitch?
44 The trial judge directly addressed the content of Mr Moscovitch's evidence and accurately stated its import.
46 The alternative case also postulates that the company documentation and records were not prepared in accordance with instructions given to the accountants. It must fail for the same reasons that her Honour dismissed the appellants' primary case. Her Honour's conclusion that the corporate documentation reflects the instructions given to Mr Moscovitch is dispositive of the point.
47 On appeal, it was further submitted that on either version of the conversation, George's instruction to Mr Moscovitch constituted an oral declaration of trust sufficient to divide the legal and beneficial interests in the Jinacan shares. It was further submitted Glen held no beneficial interest in either case. Reliance was placed upon the principles stated in Byrnes v Kendle.[13]
48 The trial judge's reasons also dispose of this argument:
49 The factors identified by her Honour are again dispositive of the alternative case. The alternative case is also inconsistent with the corporate records and the payment of dividends in accordance with those records. The evidence of the appellants and Mr Moscovitch remains materially contradictory in respect of the alternative case and it remains true that that evidence called by the appellants has no coherent theme. Further, the absence of any documentation before 2006 reflecting oral declarations of trust somehow displacing the recorded corporate structure is just as telling with respect to the alternative claim as the primary claim. Lastly, the failure to advance the alternative claim until the last hour is even more telling in terms of credibility with respect to the alternative claim than the primary claim.
50 It follows that her Honour's reasoning with respect to the evidence as a whole including that of Mr Moscovitch was dispositive of the alternative claim albeit that it was in terms directed to the primary claim.
51 The appellants' contentions that her Honour erred in failing to have regard to Mr Moscovitch's evidence and in failing to provide adequate reasons for rejecting the alternative claim must fail.
Was the evidence of Mr Moscovitch sufficient to establish a competing claim to that asserted by the Commissioner?
52 Moreover and in any event, the evidence of Mr Moscovitch did not change the weight of the evidence overwhelmingly favouring the Commissioner's claim.
54 There are a series of contextual circumstances supporting the view that Mr Moscovitch's advice was rejected and a conscious decision made to retain the structure under which the only trust was the declaration by George in favour of Glen.
55 Further and more fundamentally, as the careful analysis of the trial judge demonstrates, the effect of the 1987 transactions was not simply the subject of detailed contemporaneous records but was confirmed by:
56 It is unnecessary to traverse all this evidence in detail once again. Her Honour was correct to conclude that this evidence was not displaced 'by sketchy and unsubstantiated assertions' by the defendants that they had contributed to the purchase of the Sydney Road property in various ways.[24]
57 Taken as a whole, the documents provided a powerful body of circumstantial evidence. Further, they constituted prima facie evidence of their contents including the structure of the company first by reason of the provisions of ss 1305 and 251A of the Corporations Act;[25] and secondly because they were in any event prima facie evidence of their contents as books of account kept in a systematic way over an extended period. The minutes referred to were of particular significance. As the plurality stated in ASIC v Hellicar:
But the minutes were more than just one of several pieces of evidence from whose united force ASIC sought to have the tribunal of fact draw an inference. The minutes were a formal and near contemporaneous record (adopted by the board as an accurate record) of the proceedings at the meeting. The minutes were evidence of what they represented. They were more than a foundation for some further inference. Absent evidence to the contrary, ASIC proved its case by tendering the minutes and, through the evidence of Mr Baxter, identifying the document referred to as the 'ASX Announcement'. [26]
58 Further, it may be noted that the critical documents relied upon by the Commissioner were signed by one or more of the appellants individually and constituted admissions against interest.
59 The effect of the documentary evidence was not impugned by Mr Moscovitch's evidence first because, for the reasons I have explained, that evidence was able to be reconciled with it and secondly because having regard to the contextual circumstances I have identified it could not sensibly have been preferred to the documentary evidence. The trial judge was correct to observe that this was a case in which the appellants, having intentionally adopted a particular corporate structure for perceived reasons of advantage, could not now resile from it. Her Honour cited the observations of Young J[27] in Morgan v 45 Flers Avenue Pty Ltd:
Unfortunately, it very often happens in cases in this court that a person has arranged his affairs for commercial or fiscal reasons employing a particular structure, which with respect to creditors and the Government he expects to be recognized as no sham, but when it comes to a dispute with his former wife or former business associates it is not in his interests to maintain the structure and he pleads before this Court that one must not look at the structure at all but rather at the 'realistic' or 'practical' effect of what has happened. ... So long as the law permits people to erect structures which have meaningful legal consequences then if a person elects to erect such a structure he must take the consequences of such erection for better, for worse, for richer or poorer, in commercial sickness or commercial health.[28]
60 It follows that the trial judge was correct to conclude that the four shares in Jinacan were beneficially owned by Glen.
Was the trial judge correct to refuse to amend the defence to reflect the alternative case?
61 It also follows from the above analysis that the appeal must fail whether or not her Honour was correct to refuse to allow an amendment to the appellants' defence which raised the alternative claim. Nevertheless for the sake of completeness, I will deal with this issue.
62 Her Honour summarised the basis of her decision as follows:
63 The decision to refuse an amendment was a discretionary one with respect to a question of procedure. This Court should not disturb it unless her Honour's reasons disclose an application of incorrect principle or the decision was clearly wrong.[30] Her Honour's reasons disclose no error of principle and she was not plainly wrong. She was required by s 8 of the Civil Procedure Act to exercise her discretion in a manner which gave effect to the overarching purpose stated in s 7 of that Act. The following circumstances were significant to the exercise of the discretion.
64 Notice of an opposing party's case is a fundamental requirement of procedural fairness. The failure to raise the alternative case until the very late stage of the application in the present case gave rise to a material risk of procedural unfairness and prejudice to the Commissioner. Her Honour was entitled to give this consideration material weight as it is plain she did.
65 Further, and independently of the question of prejudice, her Honour was entitled to have regard to lack of promptness with which the application was made,[31] the fact that the appellants were represented by competent counsel,[32] and the fact that it was open to the appellants to make the application earlier in the proceeding.[33] Indeed, it is difficult to escape the inference that the application was not made earlier because of a forensic choice to run with the primary case rather than the alternative case. Obviously enough the alternative case highlighted the contradictions between Mr Moscovitch's evidence and the appellants' own evidence.
66 Reliance was placed by the appellants upon the decision in Leotta v Public Transport Commission (NSW).[34] That decision concerned a fundamentally different kind of case. This was not a case turning critically upon facts of which the appellants had no personal knowledge. Leotta's case concerned a claim by a widow with respect to the circumstances in which her husband died. Evidence of additional facts unknown to her emerged during the course of a jury trial and particulars of negligence were amended. In contrast, this was a case in which it was the conduct of the appellants themselves and Alex which was essentially in issue. A forensic choice was made to run the case on one basis and a last minute attempt was made to postulate a new alternative, both inconsistent with the evidence of the appellants and the case which the Commissioner had to that point confronted.
67 AON Risk Services Australia Ltd v ANU[35] is eloquent testimony to the potential significance of the procedural context in which an application for amendment is made. In the present case, her Honour was plainly entitled to reject the application.
68 For the above reasons, the appeal must be dismissed.
69 For the reasons given by Osborn JA, I agree that the appeal must be dismissed.
70 For the reasons given by Osborn JA, I agree that the appeal should be dismissed.
[1] The notice of appeal dated 12 September 2014 sets out the grounds 1, 2, 3 and 5 of appeal as follows:
1. The primary judge erred in finding that the four shares in Jinacan Pty Ltd were beneficially owned by Glen Geriatric Services Pty Ltd (In Liq.).
2. The primary judge erred by disregarding relevant evidence given by Mr Moscovitch.
3. The primary judge's discretion miscarried in refusing the appellants leave to amend their defence to accord with the evidence that had been given in the trial of the proceeding.
5. The primary judge failed to give adequate reasons.
[2] Deputy Commissioner of Taxation v Haritos & ors [2014] VSC 379 [34] (citations in original) ('Reasons').
[3] (1995) 62 NSWLR 657 ('Massoud').
[4] Massoud (1995) 62 NSWLR 657, 660-661.
[13] [2011] HCA 26; (2011) 243 CLR 253, 273-277 [54]-[65].
[15] [1979] HCA 9; (1979) 142 CLR 531, 552-553.
[16] [2003] HCA 22; (2003) 214 CLR 118, 125-6 [23].
[25] ASIC v Rich [2009] NSWSC 1229; (2009) 236 FLR 1, 82 [396]-[397] (Austin J).
[26] (2012) 247 CLR 345, 403 [138].
[28] (1986) 10 ACLR 692, 694-695.
[30] House v R [1936] HCA 40; (1936) 55 CLR 499, 505; Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 533.
[32] Ibid s 9(2)(g).
[33] Ibid s 9(2)(d).
Haritos & Ors
Commissioner of Taxation & Ors [2015] VSCA 79
(2011) 243 CLR 253
(1979) 142 CLR 531
(2009) 236 FLR 1
(2012) 247 CLR 345
(1936) 55 CLR 499
(1976) 9 ALR 437
(1995) 62 NSWLR 657
(1943) 67 CLR 461
(2003) 214 CLR 118
(1950) 81 CLR 513
(2009) 239 CLR 175