Investec Bank (Australia) Limited v Steven Burge

Judgment 1On 14 December 2011, I delivered judgment in respect of a Notice of Motion filed on 29 August 2011 by Mr Burge ("the Amendment motion") by which he sought leave to file an Amended Defence and Amended Cross-Claim/Statement of Cross-Claim and a Notice of Motion filed by Investec Bank (Australia) Limited ("Investec") on 28 October 2011 by which it sought an order that each paragraph of the existing Defence and Counter-Claim filed by Mr Burge be struck out or alternatively that the proceedings on the Defence and Counter-Claim be dismissed ("the Strike-out motion"). 2Investec was successful in striking out the existing Defence and Counter-Claim and Mr Burge was partly successful in obtaining leave to file an Amended Defence (excluding proposed paragraphs 28-29) and unsuccessful in obtaining leave to file the Amended Cross-Claim/Statement of Cross-Claim in its present form. Following delivery of my judgment, I allowed the parties an opportunity to make short written submissions as to the costs of the motion. Both Investec and Mr Burge made such submissions. 3There were some unsatisfactory features of the manner in which the motions proceeded before me on 7 December 2011. Mr Burge is not presently represented by solicitors in the proceedings; he had filed short written submissions in respect of his motion, prior to an earlier listing of the matter before me on 25 November 2011, when I had adjourned both motions for hearing on 7 December 2011 to ensure that he had an opportunity to make full submissions; Mr Burge then retained Counsel to appear on that date with a limited brief to seek a further adjournment of the motions, who withdrew when that further adjournment was not granted; and Mr Burge was not then present or represented in respect of the motions. As I noted in my judgment dated 14 December 2011, it was therefore not entirely clear whether Mr Burge pressed the Amendment motion. 4Uniform Civil Procedure Rules 2005 (NSW) r 42.1 provides that the Court is to order that costs follow the event unless it appears to it that some other order should be made as to the whole or any part of the costs. Investec submits that it should have its costs of both motions. Mr Burge resists that order, at least in respect of the Strike-out motion, on the basis that he thought it was understood that he accepted that the earlier Defence was to be replaced by the proposed Amended Defence. However, Mr Burge's Amendment motion did not necessarily indicate that he abandoned his earlier Defence, exposing him to the risk of having no defence if the amendment he sought was not allowed, and Mr Burge neither expressly withdrew the earlier Defence or consented to the Strike-out motion. Investec therefore acted reasonably in proceeding with the Strike-out motion on which it succeeded. Accordingly, I consider it should have the costs of that motion. In my view, Investec should also have the costs of its opposition to Mr Burge's application for leave to file an Amended Cross-Claim as to which it was also successful. 5There remains the question of the costs of Mr Burge's application for leave to file an Amended Defence, in which Mr Burge was successful in respect of paragraphs 1-27 of the Amended Defence but not paragraphs 28-29 of the Amended Defence. 6Investec submits that it should have its costs of opposing the application for leave to file the Amended Defence because Mr Burge was not granted leave to file that Amended Defence in the form before the Court, but only in a form which omitted paragraphs 28-29, and because (as I have noted above) it was not entirely clear whether Mr Burge pressed the Amendment motion when the motions were heard on 7 December 2011. I give limited weight to the second of those matters, since Mr Burge's previous written submissions had indicated a wish to proceed with the Amendment motion and had invited the Court to determine it by reference to those submissions and I had indicated to Counsel for Investec when the motions were heard that I would proceed on that basis (transcript 7.12.2011 p 5). 7Investec also relies on the fact that Mr Burge was granted a significant indulgence in order to permit the grant of leave to file paragraphs 1-27 of the Amended Defence, namely leave to withdraw (or at least qualify) certain admissions contained in his original Defence and Counter-Claim. In my view, Investec is correct in noting that Mr Burge was permitted a significant indulgence in being permitted to withdraw or qualify the admissions made in that earlier Defence and Counter-Claim. In my view, Mr Burge should not be treated as entitled to costs as against Investec where he was partly successful in the application to amend his Defence by reason of that indulgence. 8Investec also relies on the fact that it had, in its written submissions, proceeded on the basis that an application to withdraw the admissions made in the earlier Defence and Counter-Claim had not been expressly made by Mr Burge and that the basis of such an application was not made out in the evidence. 9As to the first of those matters, it seems to me that the Court's obligation under s 56 of the Civil Procedure Act 2005 (NSW), to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings, required that Mr Burge's application for leave to file the Amended Defence be treated as also an application under UCPR r 12.6 for leave to withdraw or qualify the admissions made by the earlier Defence and Counter-Claim to the extent that such leave was required. In my view, it would have been an unduly technical approach to reject an application for leave to amend a pleading made by a self-represented litigant because he had not recognised the need for a specific application for such leave under UCPR r 12.6. As to the second of those matters, Investec rightly draws attention to the authorities that the Court will treat an application for leave to withdraw admissions as a matter of substance. Nonetheless, an application to withdraw or qualify admissions made in an earlier pleading will need to be determined in its particular circumstances and having regard to the matters specified in s 56 of the Civil Procedure Act . 10Having regard to these matters, I consider that I should order that Mr Burge pay Investec's costs of and incidental to the Strike-out motion and the Amendment motion in respect of the Cross-Claim and that the costs of the Amendment motion in respect of the Amended Defence should be Investec's costs in the cause. I should add, for the assistance of a costs assessor, that it seemed to me that only a small part of the costs incurred in submissions and oral argument before me related to the latter matter. 11Mr Burge seeks an order that any costs ordered against him be payable at the end of the case. It is not necessary for me to make any order in that regard, since UCPR r 42.7 provides that, unless the Court otherwise orders, the costs of any application or other stay in the proceedings do not become payable until the conclusion of the proceedings. Investec has not sought an order departing from the usual position in respect of the motions. 12Investec also submitted that the Court should confine the time in which Mr Burge was at liberty to file any Amended Defence in accordance with the leave I had granted, by requiring that any Amended Defence be filed by Mr Burge on or before 6 February 2012, prior to the listing of the matter before the Registrar in Equity on 10 February 2012 for further case management. I consider that such an order is desirable and consistent with the appropriate and efficient management of the proceedings. I should also make clear that the leave to file an Amended Defence was granted on the usual basis that Mr Burge pay Investec's costs thrown away as a result of the amendment. 13Mr Burge has indicated in his written submissions that he intends to seek leave to reformulate paragraphs 28-29 of the draft Defence which were excluded from the grant of leave to file a further Defence. I should indicate that in my view, the delays in the matter to date are such that Mr Burge should assume he will have only a short time to take that course, and any motion to file any further Amended Defence containing any reformulation of those paragraphs and a draft of that further Amended Defence should preferably be brought before the Registrar when the matter is listed in the Registrar's List on 10 February 2012. However, I will not make a formal direction in that regard since the parties have not had the opportunity to address this matter in submissions. 14Accordingly, I order that: 1 The Defendant pay the Plaintiff's costs of and incidental to the Plaintiff's motion to strike out the Defence and Counter-Claim and the Defendant's motion for leave to file an Amended Cross-Claim/Statement of Cross-Claim. 2 The costs of and incidental to the Defendant's motion for leave to file an Amended Defence be the Plaintiff's costs in the cause. 3 The Defendant file and serve any Amended Defence in accordance with Order 1 made in my judgment dated 14 December 2011 on or before 6 February 2012. 4 The Defendant pay the Plaintiff's costs thrown away by reason of any such amendment.