Ingpen v Baptcare Ltd

1. By their statement of claim, the plaintiffs allege the defendant has breached the terms of the leases and is liable to repay the sum of $370,000 to the plaintiffs, alternatively damages, together with interest and costs. Declaratory relief is also sought.
2. The defendant denies the plaintiffs' claims and relies on the proper construction of the leases and the conduct of the parties. It says that no relief is available to the plaintiffs and that the estate has suffered no loss and damage.
3. In its current defence, the defendant contends that Mrs Colborne had agreed to relocate to the new facility, even though she died before the new facility was completed and ready for occupation. The defendant agrees that it had not tried to re­let the apartments and refers to having obtained a valuation report from M3 Property and Strategists ('the valuation report') with a view to satisfying the plaintiffs of the suitability of an estimated new loan amount.
4. On 3 December 2021, the defendant filed a defence prepared by its solicitors, including relevantly the following matters ('existing Issues'):

(a) At paragraph 27(c)(vii) - a particularised reliance upon the value of the apartments, including a valuation report obtained from M3 Property Strategists which assessed the market value of each apartment at $290,000 (refurbished) ('M3 Property report'); and

(b) At paragraph 27(c) - a particularised reliance on:

(i) an agreement between the defendant and thew second plaintiff as attorney for Ms Colborne;

(ii) a failure of Ms Colborne and the plaintiffs as attorneys for Ms Colborne to dispute the estimated new loan amount and the nil refund assessment which resulted in no amount payable to Ms Colborne by the defendant;

(iii) the factual context of the relocation of Ms Colborne due to the proposed redevelopment of the land; and

(iv) representations referred to as 'discussions', 'emails', an 'agreement', and an 'Acknowledgment'; and

(c) At paragraphs 46 and 47 - quantum meruit and promissory estoppel.

1. At paragraph 3 of its further and better particulars of its defence, the defendant stated that it was intending to amend its defence 'in due course'.
2. On 20 April 2022, the plaintiff's solicitors invited the defendant's solicitors to provide its proposed amended defence and provide more complete particulars. The defendant did not respond.
3. Discovery and inspection have been completed and the parties participated in a court ordered mediation on 25 July 2022. The mediation proceeded on the basis of the existing defence and the existing further and better particulars.
4. The defendant has not discovered its letter to M3 Property and Strategists requesting the valuation report nor has it given notice of its intention to rely on the valuation report as expert evidence. At the date of the present hearing, the defendant has not complied with the orders of JR Bennett or Order 44 of the Rules relating to the valuation report and the Expert Witness Code of Conduct.
5. Pursuant to consent orders made by JR Bennett on 31 January 2022, the proceeding was set down for trial on 19 October 2022 as a cause before a judge sitting alone, with an estimate of three to five sitting days. On 31 January 2022, the judicial registrar further ordered by consent that any application to vacate the trial date or revise the estimation of trial duration must be made at least 30 days before the trial date; that is, before 20 September 2022. The proposed court book index was ordered to be served by 28 September 2022 and any response was required to be provided by 5 October 2022. The pre-trial information form required under the Commercial Division Omnibus Practice Note is required to be submitted by 4.00 pm on 29 September 2022 and a directions hearing is listed for 10.00 am on 3 October 2022.
6. I am advised by court staff that if the present trial date is vacated the trial cannot be relisted until 14 August 2023.

1. So far as the timing of the present application is concerned, the defendant's solicitor advised the Court the lateness of the request to file and serve an amended defence is a consequence of it having briefed senior counsel to appear at the trial of the proceeding. I was not told when senior counsel was first briefed in this matter.
2. Apparently, senior counsel advised the defendant that it was necessary to amend its pleadings, including to narrow the issues in dispute in accordance with the defendant's obligations under the Civil Procedure Act 2010 ('CPA').
3. Between 7 September and 20 September2022, the defendant's solicitors provided a copy of the proposed amended defence to the plaintiffs' solicitors, noting the upcoming trial date and requesting consent to the filing of the proposed amended defence, so as to save the parties and the Court time and the costs of the present application. On 20 September 2022, the plaintiffs' solicitors confirmed the plaintiffs oppose the filing and service of the proposed amended defence.
4. The material filed by the defendant shows the first approach it made to the plaintiffs' solicitors, seeking the plaintiffs' consent to filing and serving an amended defence, was by letter dated 7 September 2022.
5. The defendant asserts, its proposed amended defence does not give rise to any factual disputes which are not already pleaded or contained within the material relied upon by the defendant to date.
6. The defendant submits the dispute arises out of largely uncontested facts. It further submits the vast majority of the amendments are directed to proper construction of the leases, and raise no issues of disputed fact. The balance of the amendments, it says, 'if anything, narrow the issues in dispute and otherwise raise no new issues of fact that were not already in dispute. These is no new factual case being run.'
7. Referring to the judgment of Derham AsJ in ABL Nominees Pty Ltd v MacKenzie (No 2) ('ABL Nominees')[1] and of the High Court in Aon Risk Services Australia Ltd v Australian National University ('Aon'),[2] the defendant submits the proposed amended defence clearly does not fall into the category of a pleading that would have no real prospect of success at trial.
8. The defendant further submits that the Court ought to exercise its discretion to grant leave, as none of the relevant factors identified in Aon or ABL Nominees applies to the proposed amended defence. Alternatively, the defendant submits, the plaintiffs cannot be said to be relevantly prejudiced in circumstances where there has been satisfactory explanation for the proposed amended defence. As appears below, I do not accept these submissions.
9. The defendant elaborated on these contentions in written submissions as follows:

[21] In short, the PAD raises no new factual issues or case, and in fact narrows the defence and abandons the quantum meruit pleading, which had already raised the issue of value. In particular:

(a) The Application is made because Senior Counsel has advised Baptcare to amend the Previous Pleading, including to narrow the issues in dispute;

(b) The PAD raises no new issues and in fact narrows the defence:

(i) As can be seen from the Existing Issues, the parties have always been required to call reliance evidence - and it cannot be said otherwise;

(ii) Questions of value have always been in the proceeding, including as part of the Plaintiffs' own claim, and as part of the Existing Issues;

(iii) The M3 Property report was already in the Previous Pleading - which cannot be said to relevantly prejudice the Plaintiffs as on their case they say the relevant value of the Apartments is zero;

(iv) The legal matter of waiver is said to expressly or implicitly arise from the Acknowledgement, which was already pleaded including by way of an estoppel to the same effect as the new waiver plea; and

(v) The refined estoppel pleading arises from the estoppel currently pleaded and if anything is narrower in scope; the new estoppel pleading creates no new factual controversy and relies upon exactly the same facts;

(c) Baptcare has acted at all times promptly to file and serve the PAD after receiving advice from Senior Counsel, so there is no relevant substantial delay;

(d) It cannot be said that the Plaintiffs cannot be adequately compensated; and

(e) While case management concerns may reasonably be a factor, given the trial date, there is no irreparable unfair prejudice to the Plaintiffs.

1. In supplementary oral submissions, the defendant's junior counsel added:

(1) this is the defendant's first application to amend its defence;

(2) the 'late amendments' are being sought before trial and 'not on the steps of the court';

(4) the defendant would be 'taking steps to prepare for trial as quickly as possible';

(5) the discretion to grant leave to amend the defence rests on 'irreparable prejudice' and there is no irreparable prejudice to the plaintiff;

(6) no court book has to be undone and done up again;

(8) no substantial delay has been caused, it should only take the plaintiffs three weeks to respond;

(9) the defendant's should not be shut out from making commercially driven changes to their pleadings;

(10) the plaintiffs should have been on notice 'someone would have to call expert [valuation] evidence';

(11) the costs of the amendment are covered by Rule 63A.17;

(12) however, it was submitted in reply, 'The stress caused to the plaintiffs can be remedied by costs'.

1. The plaintiffs submit that if the defendant is granted leave to file and serve an amended defence at this stage in the proceedings, they will be disadvantaged and prejudiced for the following reasons:

(a) The defendant seeks leave to substantially refashion its defence barely a month before trial. Amendment in this form would necessitate an adjournment of the forthcoming trial, currently fixed for 19 October 2022.

(b) When I asked the plaintiffs' counsel if leave to amend were granted what steps the plaintiffs would need to take in response, I was told:

(i) further and better particulars of the new issues raised by the amended defence would need to be provided by the defendant;

(ii) the plaintiff would need to file an amended reply;

(iii) there may be the need for a rejoinder;

(iv) discovery would need to be reconsidered, with the possibility of further inspection;

(v) an expert report regarding the market value of Mrs Colborne's apartments, that were slated for demolition before her death, would need to obtained and served in accordance with the Rules;

(vi) the plaintiff would need to prepare for 'a new trial' raising significantly different issues and defences;

(vii) further mediation may be warranted; and

(viii) the trial 'would be pushed back to next year'.[3]

(c) the plaintiffs' costs of the present reply, the mediation and trial preparation will be wasted;

(d) if there is no further mediation, the plaintiffs will be deprived of the opportunity to mediate the dispute on the basis of the contentions that would then be advanced by the defendant at trial;

(e) there will be additional costs involved in administering and winding up Mrs Colborne's estate, which has been administered now for over five years,[4] and the beneficiaries will be kept out of their entitlements because of the further delay in the final administration and distribution of the estate, causing them significant stress and anxiety.

1. The plaintiffs further submit, the defendant has not provided an adequate explanation for the lateness of its application to amend. It appears to be a consequence of the late engaging of senior counsel for the trial. While we are not told when senior counsel was briefed, it can be inferred it was relatively recently.
2. Having made the 'strategic' decision to brief late for the trial, the plaintiffs argue, 'the Defendant must now bear its consequences. It should run its case as it is presently pleaded.' The plaintiffs submit: 'The Defendant has had more than a sufficient opportunity to identify the issues it wishes to agitate in this proceeding.'
3. Granting leave to amend in these circumstances, 'is hardly compatible with strengthening public confidence in the judicial system.' The plaintiffs further submit: 'This is particularly the case when the Plaintiff has drawn its Reply, discovered documents, and mediated the dispute as it is currently pleaded, and has been preparing for trial on this basis. This points to the wasted costs arising from the proposed amendments being considerable.'
4. The plaintiffs refute the defendant's contention that the proposed amendments will narrow the issues in dispute to any significant extent. To the extent the defendant now proposes to make admissions, the plaintiffs submit these are generally admissions where the defendant had either already admitted the plaintiffs' allegation subject to the production of the relevant document (see, for example, [6], [7], [8], and [10]) or had previously not admitted the plaintiffs' allegation (see, for example, [16], [29] and [30(a)]).
5. The plaintiffs further submit: 'To the extent the Defendant now proposes to abandon its quantum meruit defence at [46], this is merely a belated recognition that this defence is fatally misconceived.'
6. Contrarily, the plaintiffs submit, the proposed amendments would give rise to further factual disputes which have not arisen on the pleadings to date, and are not addressed in the material filed or discovered so far. In particular, the new facts the proposed amendments will raise for determination, the plaintiffs argue, include:

(a) whether the value of each apartment was $290,000 as at 1 May 2017: [17(b)(v)], [21(b)(ii)] and [21A];

(b) whether M[r]s Colborne consented to the demolition of the Apartments or the redevelopment of the Land: [27A(a)] and [47];

(c) whether M[r]s Colborne waived compliance by the Defendant with clause 10.1 of the Lease: [27A(b)];

(d) whether Mrs Colborne represented to the Defendant that she consented to the Apartments' demolition or the Land's redevelopment: [47];

(e) whether the Defendant relied on any such representations in any respect: [47]; and

(f) whether the Defendant would have sought a declaration as to the true and proper construction of the Leases, or used its best endeavours to re-let the Apartments, if Mrs Colborne had informed the Defendant that she did not consent to the Apartments' demolition or the Land's redevelopment: [47B].

1. At the hearing of this application, the plaintiffs' counsel took me through a very detailed analysis of the alternative pleadings, which involved a comparison of the issues raised in the statement of claim and the defence as originally pleaded and the issues now raised in the proposed amended defence. It is inutile for me to attempt to summarise these submissions here, as they appear in the transcript of the hearing.
2. It is the incorporation of these issues into the pleaded case, the plaintiffs submit, which is likely to give rise to further discovery, particularly of documents concerning the circumstances in which Mrs Colborne purportedly consented to the apartments' demolition or the land's redevelopment, and the defendant's purported reliance on her alleged representations. This, alone, the plaintiffs submit, will necessitate the current trial date being vacated.
3. Moreover, the plaintiffs submit, 'the proper determination of the first issue listed above - regarding the proper valuation of the Apartments as at 1 May 2017 - is a matter of expert evidence. The particulars to [21(b)] of the proposed Amended Defence acknowledge this by referring to the valuation report obtained from M3 Property Strategists.'
4. The plaintiffs observe, the defendant has not filed the M3 Property Strategists report as expert evidence pursuant to order 8 of the orders made on 31 January 2022. Accordingly, the plaintiffs argue, the report cannot stand as expert evidence.
5. Moreover, should the defendant wish to rely on that report as expert evidence at trial, then the plaintiffs will not be able to obtain appropriate answering material from a suitable expert before the current trial date, thereby necessitating the vacation of the trial date and significant further delay in finalising the administration of Mrs Colborne's estate. This will undoubtedly cause additional anxiety and stress for the executors and the beneficiaries.
6. The plaintiffs also point to the fact the defendant has not asserted in correspondence, or in Ms Turner's affidavit, that the amendments are needed to crystallise the real issues in dispute.
7. This, it is submitted, is further demonstrated by Ms Turner's affidavit, which seeks leave under rule 14.09(a) of the County Court Civil Procedure Rules 2018. The defendant does not seek to engage rule 36.01(1), which is typically applied in these circumstances, and is directed towards 'determining the real question in controversy between the parties'. I note, this was corrected by defence counsel during the hearing before me.
8. The plaintiffs submit, 'on the Defendant's own material, the amendments are not necessary for the Court to determine the real issues in dispute.'
9. The plaintiffs also point out that 'the proposed promissory estoppel defence ... proposed allegations are deficiently pleaded.' In particular, so it is says, the defendant does not plead or particularise with any specificity at [47(a)] and [47(b)] the steps it says it took in reliance upon Mrs Colborne's alleged representations when proceeding with the land's redevelopment, and, after Mrs Colborne's death, when not attempting to re-let either of the apartments.
10. According to the plaintiffs, this lack of specificity is significant because these unspecified steps form the basis of the defendant's proposed allegation at [47B] that it is now unconscientious for the plaintiffs to allege that the defendant breached its obligations under clause 10.1 of the leases by not using its best endeavours to re-let the apartments.
11. Accordingly, the plaintiffs submit, if leave is granted, the plaintiffs will be required to open their case, present their evidence, and close their case without knowing how Mrs Colborne's alleged representations are said to have influenced the defendant's subsequent decisions.
12. The plaintiffs finally submit: 'Leave should not be granted to file a deficiently drawn amended pleading which would be liable to being struck out if it were an original pleading.'
13. In summary, the plaintiffs' submit:

... the Defendant seeks the Court's indulgence to amend its Defence barely a month before trial solely to redress its strategic decision to delay engaging counsel. Having made that decision, the Defendant must now bear its consequences. It is no basis for the Defendant to be granted leave to amend its Defence. The prejudice to the Plaintiffs in losing the trial date and further delaying the administration of Mrs Colbome's estate, or being required to obtain expert evidence in an untenably short time, cannot be remedied by an order for costs.

1. In Mayart Pty Ltd & Ors v Knight & Ors,[5] his Honour Judge Cosgrave exhaustively set out the legal principles which apply in a case such as the present, as follows:[6]

[38] Whether or not to grant a pleading amendment is a discretionary decision in the sense that no single consideration and no combination of considerations is necessarily determinative of the result. The judge has some latitude about choosing which decision to make.[7]

[39] Whereas at one time courts were quite liberal about allowing pleading amendments, at least where the inconvenience to the other party could be mollified by a costs order, the position has changed in recent years. The altered attitude is reflected partly by the introduction of legislation like the Civil Procedure Act 2010 (Vic) ("the CPA") and partly by the approach now taken by the courts as reflected in decisions such as Aon Risk Services Australia Limited v Australian National University.[8]

[40] A main purpose of the CPA was to reform and modernise the law's practice, procedure, and processes relating to civil proceedings in Victorian courts. Another main purpose was to provide for an overarching purpose in relation to the conduct of civil proceedings to facilitate the just, efficient, timely, and cost effective resolution of the real issues in dispute.[9] The CPA sets out its overarching purpose and section 8 requires that courts give effect to the overarching purpose in the exercise of any of its powers or the interpretation of those powers.

[41] Hence, in making any order or giving any direction in a civil proceeding, the court is to further the overarching purpose by having regard to various objects including the just determination of the civil proceeding, the efficient conduct of the business of the court, the efficient use of judicial and administrative resources and the timely determination of the civil proceeding.[10]

[42] In Aon, the High Court made the point that in considering how to deal with amendment applications, there is a variety of matters to which the court can properly pay regard: the extent to which allowing the amendment would waste the public resource of the court and its officers; the strain and uncertainty on litigants; the potential for loss of public confidence in the judicial system; the scope for delay; and the effect on other litigants.

[43] Courts have now decided that achieving the just, timely, and cost effective resolution of disputes is a matter of public interest to the court and other litigants and is not confined solely to the parties in the subject action.

[44] The Victorian Court of Appeal in Trevor Roller Shutter Service Pty Ltd v Crowe said:[11]

"As we construe Aon, it was about the impropriety of granting a party leave to make a late amendment to a pleading, in circumstances where that party had failed to act expeditiously, and where to allow the amendment was likely to be productive of wasted costs and resources. More generally, Aon may be thought to have re-invigorated the procedural paradigm, to some extent and for some time diminished by J L Holdings, that time, costs and limited judicial resources are relevant considerations in the determination of whether to allow late applications for amendment and invoke other interlocutory process."

[45] Aon made clear that an application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to allow amendment should be weighed up. The fact of substantial delay, wasted costs, and the concerns of case management will assume importance on such applications.

[46] The judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon commented that:[12]

"A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate."

[47] The applicable rule for considering amendment applications is Rule 36.01(1) of the Rules, which provides as follows:

"For the purpose of:

(a) determining the real question and controversy between the parties to any proceeding; or

(b) correcting any defect or error in any proceeding; or

(c) avoiding multiplicity of proceedings;

a court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding."

[48] In this context, "document" includes originating process, indorsement of claim and a pleading.

[49] Any application to amend should be made promptly after the need for the amendment arises. Derham AsJ conveniently summarised the relevant principles to be applied in Victoria in ABL Nominees Pty Ltd v Mackenzie (No 2),[13] where he said:

(a) the power to amend in Rule 36.01 authorises the court to order that a party have leave to amend any pleading for the purpose of determining the real question in controversy between the parties to any proceeding, correcting any defect or error, or avoiding multiplicity of proceedings;

(b) an amendment which is futile because it is obviously bad in law will not be allowed;

(c) if a proposed amendment would be liable to be struck out if it were in an original pleading, either because it was bad in law or defective as a pleading, then leave to file it will not be given;

(d) the test is best expressed in the words of section 63 of the CPA_:_ if the amendment has no real prospect of success at trial, that would be a highly relevant and probably decisive factor in the exercise of the discretion; and

(e) principles about amendments and repleading limits on re‑pleading can properly take account of the factors identified by the High Court in Aon Risk Services Australia Ltd v Australian National University.[14]

[50] An application for significant amendments to a pleading is traditionally made by summons supported by an affidavit which explains the reason for the amendment, any delay in making the application, and includes as part of the affidavit material a draft of the proposed pleading. Parties commonly include factual matters which support the change or changes sought so that the court knows that there is a proper basis for the amendment.

[51] As noted above, courts now examine more critically applications made to amend pleadings shortly before or at trial where an adjournment of the trial could result. No longer is it the case that the courts approach such applications on the assumption that a party is entitled to amend its pleading to raise an arguable point, subject only to paying the costs thrown away. As Samuels JA said in GSA Industries Pty Ltd v NT Gas Ltd[15] "the emollient effect of an order for costs as a panacea may now be consigned to Aladdin's cave ... rejected as one of the fairy tales in which we no longer believe".

1. What his Honour said regarding, 'the efficient use of judicial and administrative resources and the timely determination of the civil proceeding' is all the more important in the context of the current COVID-19 pandemic, where the Court of Appeal has emphasised that:

As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.[16]

Similar comments have been made regarding the civil lists in the courts of this and other States.[17]

1. There is a range of other discretionary factors to which a court can have regard in deciding whether to allow a pleading amendment. The factors include: whether there will be substantial delay caused by the amendment; the extent of wasted costs which will be incurred; whether there is an irreparable element of unfair prejudice caused by the amendment arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations which cannot be adequately compensated by costs; concerns of case management arising from the stage in the proceeding when the amendment is sought; whether a satisfactory explanation has been given for seeking the amendment at the stage when it was sought.
2. I accept the plaintiffs' submissions in their entirety.
3. The present application is made only three weeks before the trial which is scheduled for 19 October 2022. The trial date was set on 31 January 2022. If the current trial date were to be vacated, the next available trial date is not until 14 August 2023.
4. In my view, there is no satisfactory explanation for the lateness of the defendant's application. The presumably late briefing of senior counsel is not a satisfactory excuse.
5. The amendments sought in the proposed amended defence are substantial. One only has to compare the original defence with the proposed amended defence to see the extent of the amendments sought.
6. There is simply no possibility of the existing trial date being retained, and the further delay of some ten month's will cause prejudice to the plaintiffs by way of significant stress and anxiety which cannot be compensated for by an order for costs.
7. Concerns about case management are highly significant in this case, particularly in the CIVID-19 environment. The vacation of the current trial date will inevitably inconvenience other litigants in the Commercial Division and cause inefficiency in relation to the use of judicial resources. There will be significant cost consequences for the plaintiffs if the amendment is permitted, in a case which does not involve a very large sum.
8. Granting leave to the defendant to file and serve the proposed amended defence would not assist the parties and the Court in the attainment of the overarching purpose set out in the CPA.
9. Accordingly, I consider the overarching purpose of the CPA and the interests of justice are best served by refusing the defendant's application.

[1] [2014] VSC 529 [17].

[2] [2009] HCA 27; (2009) 239 CLR 175.

[3] As noted above, the matter could not be relisted before 23 August 2023.

[4] Probate of Mrs Colborne's Will was granted to the plaintiffs by the Supreme Court of Victoria on 26 May 2017.

[5] [2020] VCC 1169.

[7] See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 204-205 [19] (Gleeson CJ, Gaudron and Hayne JJ) quoted by Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175, 210 [89].

[8] [2009] HCA 27; (2009) 239 CLR 175.

[9] Civil Procedure Act 2010, ss 1 and 7.

[10] Ibid, s 9.

[11] [2011] VSCA 16; (2011) 31 VR 249, 260 [42] (Warren CJ, Nettle and Ashley JJ).

[12] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175, 217 [112].

[13] [2014] VSC 529.

[14] [2009] HCA 27; (2009) 239 CLR 175.

[15] (1990) 24 NSWLR 710, 716.

[16] Worboyes v The Queen [2021] VSCA 169; (2021) 96 MVR 344, 356-7 [34]-[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA).

1. [17] See eg Gatto v Australian Broadcasting Corporation (No 1) [2020] VSC 420 [33]-[36] (Keogh J); Plaintiff S111A/2018 v Minster for Home Affairs [2020] FCA 499 [17] (Robertson J); Ozemac Pty Ltd v Jackanic [2020] VCC 790 [12] (Judge A Ryan).