(c) That there was a duty of care to advise the plaintiffs to enter into a written joint venture agreement and to advise as to the terms of that agreement.
75 These amendments were opposed. Mr Stevenson put that as to (a), at the very least he would have wanted to consider introducing further evidence for the first defendant to meet such a claim. As to (b), there was a considerable amount of cross-examination of the first plaintiff that would need to be covered by further cross-examination, but even before one got to that the claim was a completely new claim unparticularised. As to (c), the first defendant would at the very least have wished to consider cross-examining the first plaintiff further. Mr Harris joined in Mr Stevenson's objection.
76 As to the objection to (c), I put to Mr Stevenson that I was not as concerned with that matter as I was with the others as I could always allow further cross-examination at that stage, to which Mr Stevenson very reasonably replied: "Your Honour, the cross-examination is over. Cross-examination has a certain dynamic". I replied: "I understand that". Mr Stevenson said: "The heat has cooled".
77 Mr Stevenson made it clear that he did not object to the amendment suggested in para 3(g), that is, to delete the word "plaintiff" and insert the word "defendant". This was clearly a typographical error, and I will in any event read that amendment into the yet further amended statement of claim filed on 19 July 2000.
78 I asked Mr Taylor whether, if the amendments were allowed, he would be adducing any further evidence. He said he would not. I then took the course of reserving my decision on the proposed amendments to the giving of final judgment. It seemed to me at that stage that the odds were that if I found against the plaintiffs the extra additions were unlikely to take the case any further, and if I found in favour of the plaintiffs it did not matter. However, I kept an open mind until the evidence was finished as to whether it would be better to rule first on the amendments and then permit Messrs Stevenson and Harris to re-open or have further cross-examination if they thought that appropriate. As things have turned out, it is not necessary to do this.
79 I should give some details as to how the case developed. As I said, there was an initial flurry of activity between the commencement of the proceedings and the end of January 1997 when the parties agreed on interlocutory orders to allow the development to be completed and units sold. The case then virtually went to sleep, apart from being put in the general list. There was a debate over whether there should be an amended statement of claim in November 1998 and Master McLaughlin granted such leave. The case was then set down for trial initially before Hamilton J who on 21 June 2000 gave some further directions as to affidavits. I conducted a pre-trial on 6 July 2000. The case was not at that stage particularly well prepared in that very little of the affidavit evidence was actually filed. I made comments to the lawyers for the plaintiffs that I felt that I should vacate the fixture, but because the plaintiffs said that they should get the case ready in time, and because the defendants urged me to keep the date, I confirmed the fixture. It was clear at the directions hearing that the plaintiffs' lawyers were under the misapprehension that the issue of damages or whether there was a need for an account of profits was not going to be dealt with during the hearing, but would somehow or other be postponed. They were disabused of this.
80 The hearing commenced at 11.30 am on Monday 17 July 2000. A small amendment was sought and granted to the statement of claim. There was some difficulty with the valuation evidence but a practical solution was arrived at in postponing this issue to the end of the hearing. It was in fact dealt with on Friday 21 July 2000, the fifth day of the hearing. I was very concerned with the form of the statement of claim and on the second day near lunch, I said: "There is something that concerns me a little about the statement of claim which I will put into Mr Taylor's mind so that he can think about it over lunch. I can't make sense of paragraph 2, the last sentence. Can you tell me whether it is a typographical error at 2 o'clock?" Mr Taylor said: "Yes".
81 At the commencement of the third day Mr Taylor tendered a statement of claim which was in due course filed, and that is the yet further amended statement of claim of 19 July 2000. The evidence then proceeded and, apart from the valuation evidence, it was completed at 3.39 pm on the third day. I then made further comments as to my problems with the statement of claim.
82 At the commencement of the fourth day, when Mr Taylor made his application to file YSFASC, I remarked that I had been hinting about the problems that were bringing about this change on Tuesday and "yesterday" and "finally the penny has dropped" (see T179).
83 It was obvious to any objective reader that the statement of claim was a very poor piece of the drafter's art. In particular, there were the allegations of the existence of a duty of care and fiduciary duty which arose "in the premises" without ever fleshing out what were the facts and circumstances which gave rise to either duty. This, if not obvious, was drawn to counsel's attention on the second day of hearing, and again on the third day of hearing, and only on the fourth day of hearing was the document produced.
84 I know that there is strong authority to say that amendments must be allowed if at all possible; see eg Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. However, each case must be considered, albeit considered in the light of those general principles, as to what is the just position. In the instant case these proceedings were commenced three and a half years before the hearing, the imperfections of the plaintiffs' case had been drawn to the attention of the plaintiffs' lawyers at the pre-trial directions hearings and on the second day of hearing when the evidence was still being given, and it was only after the evidence was completed that finally "the penny dropped" and further amendments were suggested.
85 The effect of the amendments would have been inevitably to cause a further adjournment of the trial so that the defendants could think their position as to whether they wished to do any more than conduct further cross-examination, and in any event, as Mr Stevenson said, the dynamics of the cross-examination would have been affected. All of this because the plaintiffs just did not prepare their case properly from what I can see on the material before me. This may be too harsh a judgment as a Judge never knows the dynamics that were operating in the plaintiffs' camp, but that's what it appears to be.
86 To my mind it would be quite unjust to allow these amendments after the evidence, apart from the valuation evidence, has been completed. Accordingly I should refuse the amendments sought to be made in YSFASC and not have the document filed though the document will, for purposes of identification, be physically placed in the file. However, as I said, I have taken on board the typographical correction in para 3(g).
87 I think I have already made it plain that in the circumstances of this case, whether the amendments were allowed or not was extremely unlikely to affect the result in any way at all.
4. Issues of Credit
88 The defendants' counsel approached this case as being a case which could be decided on questions of fact. They did not spend time on technical defences that may have been available to them. They argued that there was no duty of care or fiduciary duty, or if there was such a duty, there had been no breach. So far as fiduciary duty was concerned, they also argued informed consent.
89 Many witnesses swore affidavits. The witnesses fall into three categories, viz: (a) the main players; (b) the experts etc; and (c) the remainder. Of category (c), only Mr Weymouth was cross-examined. Mr Weymouth is the draftsman who drew the plans for the building to be submitted to the council. I found him an impressive witness, accurate in what he said and completely unbiased. Although he was called by the plaintiffs, the balance of his evidence favoured the defendants.
90 I class amongst the experts not only the well-known solicitor Mr Neville Moses, but also the plumbers and builders who worked on the site. I need only really deal with Mr Moses' evidence. There is no question as to Mr Moses' credibility as a witness or his expertise, and indeed, he was not cross-examined.
91 Mr Moses' report sets out what is "standard conveyancing practice". On the material which was made available to him, which, of course, did not include the transcript of evidence, Mr Moses inclined to the view that in the light of standard conveyancing practice, the first defendant would have been expected by him to have advised a written joint venture agreement and independent advice. It is good that there is a standard. However, deviation from that standard does not necessarily mean that there is a breach of a duty of care or a fiduciary duty.
92 Of the main players, the first plaintiff was in the witness box for most of the first two days. He was extremely tested in skilful cross-examination by both Mr Stevenson and Mr Harris.
93 The first plaintiff did not fare well under cross-examination. The overall impression of the first plaintiff at the end of his cross-examination was that a lot of his evidence was either reconstructed or the result of him making assumptions which were either never put to the defendants, let alone accepted by them. I thought that Mr Stevenson put it well in his submissions when he said that the first plaintiff constantly converted assumptions into assertions. A good example of this was highlighted at T69. In his principal affidavit, PA3, the first plaintiff said in paragraph 32:
"In July 1995, the first defendant said words to the effect: 'I'm having financial difficulty and I want to get out of the project. The problem relates to another loan that I have with Westpac.' "