Nanevski Developments Pty Ltd v Slaveski

Background

1. The Moneys Claims Proceedings were commenced by Mega-Top Cargo in the Local Court variously in late 2018 and March 2019 against Nanevski Developments (and were transferred to this Court on the application of the Nanevski parties by Darke J on 1 July 2019). At the time the various Moneys Claims Proceedings were commenced, Mega-Top Cargo was represented by other solicitors from those now acting for the Slaveski parties. The claims brought in the Moneys Claims Proceedings were for relatively small amounts (hence the jurisdiction in which they were commenced).
2. The Partnership Proceedings were commenced in this Court initially by summons filed on 16 May 2019 in the duty list on an application by Nanevski Developments for the extension of caveats it had placed on two properties (to which I will refer as the Riverside Drive property and the Vista Street property), each being contended to be partnership property. The matter then continued by way of pleadings and was transferred to the Real Property List. Later, the matter was transferred back to the general equity list. At present, the existing pleadings in this matter are comprised of an amended statement of claim filed on 4 October 2019 by Nanevski Developments and an amended defence filed on 21 January 2020 by the Slaveski parties. (As adverted to above, part of the relief sought by the Slaveski parties on their present applications is leave to file a cross-claim in the Partnership Proceedings against the Nanevski parties.)
3. The particular notices of motion now before me are: an amended notice of motion filed 14 April 2020 in the Partnership Proceedings by the Slaveski parties seeking leave to withdraw an alleged admission in their existing defence (though they do not concede that there is any such admission) and leave for the filing of a proposed further amended defence and a cross-claim in the proceedings; and separate notices of motion in each of the respective Moneys Claims Proceedings (those notices of motion being filed variously on 2 and 3 April 2020), by the Slaveski parties seeking leave to amend the original statements of claim filed in the Local Court and an order for the consolidation of the said claims (the latter it is said, being to simplify case management and to minimise the Slaveski parties' filing costs).
4. The underlying dispute between the parties in the Partnership Proceedings relates to the circumstances in which a property in Riverside Drive, San Souci (the Riverside Drive property) was acquired in February 2015 in the name of Mr James Slaveski. It was acquired at auction for the sum of $2.7 million. The registered proprietors are now Mr James Slaveski (as to 99%) and his father, Mr Ken Slaveski (as to 1%) as tenants in common.
5. At the time that the Riverside Drive property was acquired, Mr Ken Slaveski and his neighbour, Mr Tom Nanevski, were together involved in business dealings in relation to a nursing home development being constructed by Nanevski Developments at Lawson Street, San Souci (the Lawson Street development). As I understand it, Mr Ken Slaveski (or more precisely his company, Mega-Top Cargo) was involved in the provision of freight and import services in respect of steel or formwork for the windows in the Lawson Street development.
6. The Nanevski parties contend that there was a partnership between Nanevski Developments and the Slaveski family members in relation to the acquisition of the Riverside Drive property. In its amended statement of claim in the Partnership Proceedings, Nanevski Developments alleges (at [8]), that the parties entered into a partnership agreement in or about January 2015 (the Partnership) for the development of properties. The particulars to [8] of the amended statement of claim include that: the Partnership was partly oral and partly in writing; and, to the extent that it was oral, it was made up of conversations between Mr Tom Nanevski, on behalf of Nanevski Developments, and Mr Ken Slaveski on behalf of himself, his son (James) and his wife (Biljana) (see particulars (a) and (b) to [8] of the amended statement of claim).
7. Paragraph 9 of the amended statement of claim pleads a number of express terms of the Partnership agreement. In summary, it is alleged: at 9, that Nanevski Developments as to 50% and Mr Ken Slaveski and/or his family members as to 50% would be equal owners of properties purchased and developed; at 9, that Nanevski Developments as to 50% and Mr Ken Slaveski and/or his family members as to 50% would be equally liable for expenses of the purchase of properties purchased and developed and liabilities associated with ownership; at 9, that Nanevski Developments and Mr Ken Slaveski and/or his family would be named as the registered proprietors of the properties purchased and developed; at 9, that Nanevski Developments would be the builder engaged for the development works, with the costs of those building works to be contributed to in equal amounts by the parties and accounted for in the Partnership; at 9, that Nanevski Developments' contribution to the costs of development works could be in the form of building works and Mr Ken Slaveski and/or his family would contribute in cash; and, at 9, that profits would be split equally between Nanevski Developments and Mr Ken Slaveski and/or his family.
8. The amended statement of claim then goes on, under the heading "[p]erformance of partnership agreement" to make allegations as to the purchase of the Riverside Drive property in February 2015 (see at [10]-[15]); the purchase of the Vista Street property in March 2015 (see at [16]-[23]); and then as to the development of the Riverside Drive property (see at [24]-[33]) and the Vista Street property (see at [43]ff).
9. In essence, what Nanevski Developments alleges is that there was a breach of a written building contract entered into in respect of the development of the Riverside Drive property (see from [34]-[41]) or in the alternative, if no partnership is found and no building contract is found as alleged, then it is claims a reasonable sum for the development works in respect of that property (see at [42]).
10. At [53] of the amended statement of claim there is an allegation as to breach of the Partnership agreement by the Slaveski parties (among other things by failing to recognise Nanevski Developments as partner in the ownership of the respective properties and by causing Mega-Top Cargo to commence the Moneys Claims Proceedings); and at [54]-[56] there are allegations of breach of fiduciary obligations allegedly owed by the defendants as partners (the "defendants" seemingly including Mega-Top Cargo although it is not alleged that it was a party to the partnership agreement).
11. The position of the Slaveski parties, broadly speaking, is that the arrangement between the parties in relation to the Riverside Drive property was that the Riverside Drive property was to be bought for Mr James Slaveski; that two townhouses were to be built on the site; and that, if Mr Tom Nanevski provided 50% of the funds for the project and assisted in the construction of the two townhouses, he would share in the profits.

Alleged admission

1. As noted above, the Slaveski parties filed an amended defence on 21 January 2020, denying the alleged Partnership agreement (see at [8] of the amended defence).
2. Relevantly, for present purposes (since this is what the Nanevski parties contend amounts to an admission), at [11] of the amended defence the Slaveski parties respond to the allegation made as to the payment of the sum of $135,000 "towards the deposit for Riverside".
3. What is alleged at [11] of the amended statement of claim is that: 11. On 7 February 2015 Nanevski Developments paid $135,000 towards the deposit for Riverside. Particulars Raine & Horne Sans Souci Trust Account receipt numbered 10712 dated 7 February 2015 in the sum of $135,000 Bank Cheque Westpac 9 Feb 2015 $67,500
4. The response at [11] of the amended defence is that: 11. In response to paragraph 11, the first and third defendants [Ken and James Slaveski]: a. State that the purchase price of the property was $2.7 million; b. Deny that the alleged cheque of $135,000 dated 7 February 2015 was ever presented for payment by Raine & Horne Sans Souci by Tom (or Tom on behalf of Nanevski Development); and c. Admit that on or about 9 February 2015, Tom gave Ken a bank cheque for $67,500; and d. Admit that Ken applied the $67,500 towards the deposit cheque for $135,000 he wrote and gave to Raine & Horne Sans Souci on exchange of contracts to purchase the property on 9 February 2015; and e. State that in the premises, at exchange of contracts, Tom or Nanevski contributed 50% of the five percent 5% %135,000 deposit required to purchase the property; and f. The second and fourth defendants (Biljana and Mega-Top) do not traverse the pleading because they do not know the facts alleged nor were either of them a registered proprietor of the property the subject of those allegations.
5. Thus, on their amended defence as it presently stands, the existence of the alleged partnership agreement is denied by the Slaveski family members (Mega-Top Cargo does not plead to [8]); but each of Ken and James Slaveski admits that Mr Tom Nanevski gave to Mr Ken Slaveski on or about 9 February 2015 a bank cheque for $67,500 and that this amount was "applied" by Mr Ken Slaveski towards the deposit cheque for $135,000 which Mr Ken Slaveski wrote and gave to the real estate agent on exchange of contracts for the Riverside Drive property. There is also, relevantly, a positive assertion that "in the premises" at exchange of contracts either Mr Tom Nanevski or Nanevski Developments contributed 50% of the 5% deposit required to purchase the property.

History of the respective proceedings

1. As noted, the first set of proceedings commenced in this Court was the Partnership Proceedings (though by that stage the Moneys Claims Proceedings were already on foot in the Local Court). The Partnership Proceedings were commenced by way of summons filed on 16 May 2019.
2. On 20 May 2019, when the matter was before Pembroke J in the duty list, it appears that the Slaveski parties consented to the extension of the caveat that Nanevski Developments had lodged over the Riverside Drive property. They say that this was expressly without admission as to the validity of the Nanevski parties' claims to an equitable interest in the property. It appears that there may have been some confusion at the time as to the particular property in respect of which it was recorded in the notes to the orders made by Pembroke J that they were without admission (see T 42.20ff). In particular, the Slaveski parties maintain that order 5 of Pembroke J's orders did not reflect the Slaveski parties' expressed intentions (and there was correspondence to that effect on 3 June 2019). Nothing here turns on this (other than that it highlights a concern raised by the Nanevski parties as to whether they would now be exposed to the risk of an application for the withdrawal of that caveat if the alleged admission is permitted to be withdrawn - see below).
3. At the time that the matter was before Pembroke J in the duty list, orders were made for the filing of a statement of claim by 27 June 2019 and the matter was transferred to the Real Property List. On 3 June 2019, a statement of claim was filed (in the Equity General List). A defence was filed on 28 June 2019.
4. An amended statement of claim, joining Mega-Top Cargo as the fourth defendant then appears to have been filed on-line (as an amended summons) in the Court on 4 July 2019.
5. Separate proceedings were then commenced in the Corporations List seeking to set aside a statutory demand that had been issued by Mega-Top Cargo in relation to the debts claimed in the Moneys Claims Proceedings. That application came before Rees J on 16 July 2019. Her Honour set aside the statutory demand.
6. An amended defence seems to have been certified on 19 July 2019, though it is not clear whether it was filed at that time.
7. The matter came before Darke J in the Real Property List on 4 October 2019, on which occasion his Honour, by consent, made orders (on the application of Nanevski Developments as I understand it but with the consent of the Slaveski parties) for the transfer of the respective Moneys Claims Proceedings to this Court from the Local Court and removing the matter from the Real Property List to the Equity General list.

The alleged admission and request for leave to withdraw it

1. The Nanevski parties contend that the effect of the amendments contained in 11, (d), (e), (f), 12, 12A, (c) and [14B] of the proposed further amended defence is to withdraw an "admission" or "a matter that operates for their benefit" within the meaning of r 12.6(2) of the UCPR. The Slaveski parties do not accept that there is any such admission but their position is that, in the event that this be wrong and leave is required, they seek leave for the amendment.
2. The relevant amendment is to that part of the Slaveski parties' defence to the Nanevski parties' claims as to the payment of $135,000 towards the deposit for the purchase of the Riverside Drive property on 7 February 2015 (see as extracted earlier). The Slaveski parties say that whether the Nanevski parties contributed to the purchase of the Riverside Drive property is a material fact in issue and central to the success or failure of their claim about that property.
3. Complaint is made by the Slaveski parties that there is an internal inconsistency between the two particulars to [11]; and that it is unclear what is alleged with respect to the bank cheque for $67,500 (i.e. to whom it was given or payable). (The Nanevski parties say that there is no confusion, arguing that there is no evidence that those making the admissions were confused, but in any event they say that the impugned paragraph means what it says: that Nanevski Developments paid $135,000 towards the deposit for the Riverside Drive property. It is said that what Nanevski Developments alleges is that it contributed $135,000; and the Nanevski parties say that Mr Ken Slaveski and Mr James Slaveski have here conceded that Nanevski Developments contributed half that amount.) The Nanevski parties say that there is a clear admission as to the $67,500 and that it operates to the benefit of Nanevski Developments because it concedes that Nanevski Developments has an equitable interest in the title of the Riverside Drive property.
4. The Slaveski parties say that it is common ground that contracts for the purchase of the Riverside Drive property were exchanged on 7 and/or 9 February 2015, and that the Nanevski parties were not parties to those contracts for sale. There seems no dispute as to this. (Subsequently 1% of the legal ownership was transferred to Mr Ken Slaveski.)

Is there an admission within the meaning of r 12.6 of the UCPR?

1. The first issue, logically, is whether the statements contained in 11, (d), (e), 12 and 12A and (c) of the amended defence are "admissions" or "a matter that operates for the benefit of" the Nanevski parties for the purpose of r 12.6 of the UCPR. The Slaveski parties maintain that the assertions contained in those paragraphs were not made formally in accordance with rr 17.2-17.5 of the UCPR, and hence say that they are not admissions within the meaning of those rules.
2. It is noted that the assertions made in the amended defence do not address a specific allegation about the $67,500 cheque being given by Mr Tom Nanevski to Mr Slaveski, who gave it to Raine & Horne. It is noted that [11] of the amended statement of claim only pleaded there was payment by the Nanevski parties of $135,000 towards the deposit for the Riverside Drive property; the reference to the bank cheque for $67,500 being a bare particular of that alleged fact (from which it is said that it can only be inferred that Mr Tom Nanevski gave that cheque to Raine & Horne, not Mr Slaveski).
3. The Slaveski parties say that it was not alleged (nor is it implied) that Mr Tom Nanevski gave the bank cheque to Mr Slaveski, who paid it to Raine & Horne. It is said that [13] of Mr Nanevski's affidavit sworn 18 April 2019 is consistent with [11] of the amended statement of claim and omits anything about the bank cheque; and it is noted that the Nanevski parties have not filed a reply to the amended defence.
4. The Slaveski parties point to their denial of the allegation in [11] of the amended statement of claim. It is said that their use of the word "admit" (in 11 and (c) is in relation to facts not alleged in [11] of the amended statement of claim; and therefore they say that the statements are not an admission for the purposes of r 12.6 of the UCPR.
5. The Slaveski parties further do not concede that the statements amount to a matter that operates for the benefit of the Nanevski parties pursuant to r 12.6 of the UCPR. They say that the assertions in question were part of an affirmative case in the amended defence that there was no partnership agreement as alleged and that any interest of the Nanevski parties in the Riverside Drive property arising from payment towards the purchase price was limited to a cash contribution by the Nanevski parties of 50% of the 5% deposit.

Position if leave is required

1. The Slaveski parties say that, if leave is required to withdraw the alleged admission, that leave should be granted.
2. The Slaveski parties point to Mr Ken Slaveski's evidence in his affidavit sworn on 27 March 2020 that: the assertions were consistent with his belief and understanding at the time ([16]) and that, in considering his cross-claim he also considered the defence and reviewed business documents revealing payments received and made at relevant times ([19]), which review included the two documents he annexed as annexures A and B to that affidavit. It is noted that the evidence at [21]-[32] of Mr Ken Slaveski's affidavit is much more specific than the extracts of his affidavit in the statutory demand proceedings relied on by the Nanevski parties and it is noted that it was not prompted by or in response to any new evidence or pleading of the Nanevski parties in those earlier proceedings or these proceedings. The Slaveski parties argue that the evidence at [34] provides a rational and appropriate explanation for the desire to withdraw the assertions and it is submitted that the evidence at [35] demonstrates a thoughtful approach to this application. It is submitted that an adequate explanation has been put forward for the application for leave to withdraw the alleged admission.
3. The Slaveski parties say that the documentary evidence that the sum of $67,500 was held in a "suspense" account raises the following material questions of fact central to the Partnership Proceedings: whether the $67,500 bank cheque was paid by Mr Tom Nanevski to Raine & Horne; whether Mr Ken Slaveski used Mr Nanevski's money or his own (and Ms El-Turk's) to pay the deposit for the Riverside Drive property when he paid the $135,000 cheque to Raine & Horne on 9 February 2015; and whether if the cheque for $135,000 given to Raine & Home on 7 February 2015 was debited from a bank account under Mr Nanevski's control, the Nanevski parties contributed anything towards the purchase price of the Riverside Drive property.
4. Again, it is noted that the amended statement of claim does not allege Mr Tom Nanevski gave the $67,500 cheque to Mr Ken Slaveski. It is noted that Mr Nanevski's affidavit of 18 May 2019 omits anything about it; and that no reply to the defence or amended defence has been filed by the Nanevski parties.
5. It is said that, in opposing this application, the Nanevski parties have not led any evidence of their own to clear up the ambiguity in [11] of the amended statement of claim and Mr Nanevski's earlier affidavit or to challenge the affidavit of Mr Ken Slaveski sworn on 27 March 2020 (notwithstanding that there was an opportunity that was clearly available to do so).

Leave to file the proposed further amended defence and cross-claim

The defence

1. It is noted that the proposed further amended defence is the first substantive amendment to the initial defence filed (because the amended defence "basically clarified" the various Slaveski parties' positions in response to the amended statement of claim and did not add substantive new pleadings).
2. The proposed further amended defence pleads additional particulars of existing defences; and pleads in the alternative that if there is a partnership, then an account needs to be taken so the contributions and losses can be equalised between the parties. It is said that those amendments add to the existing defence rather than adding a new defence. It is said that they are also consistent with the relief the Slaveski parties seek in the cross-claim. The Slaveski parties say that the additions to the defence can be seen to have arisen from the decision to file the cross-claim after the conclusion of the statutory demand proceedings. Reference is made to the affidavit of Mr Ken Slaveski sworn 27 March 2020 (at [13]-[15], [19], [36]-[38] and [50]-[51]) which it is said includes an adequate explanation for the delay in seeking the amendments.
3. The Slaveski parties say there is no evidence from the Nanevski parties of any irremediable prejudice to them by the proposed amendments and note that there is no cross-application for relief in respect of the perceived pleading deficiencies. It is said that the proper outcome of any submissions of deficiencies in this pleading by the Nanevski parties through the present application is a trial of all of the issues.
4. The Slaveski parties say that the timing of this application to amend is not "late" within that meaning in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon); nor will it result in a hearing being abandoned (referring to my discussion of Aon in Dymocks Book Arcade Pty Ltd v Capral Ltd [2011] NSWSC 1423 at [55]-[56]). It is submitted that there is an adequate explanation for the delay; that there will be limited if any presumptive prejudice; and that it is in the public interest that the real issues in the proceedings are ventilated.
5. Hence it is submitted that the power to permit the amendments pursuant to sub-ss 64(1)(b) and (2) of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) should be exercised.

The Cross-claim

1. It is noted that the application with respect to the cross-claim is not one to amend but, rather, to file the pleading. It is noted that the power to make an order that the cross-claim be filed or grant leave to file it is in r 2.1 of the UCPR, in accordance with the dictates of justice in s 58 and having regard to ss 56 and 57 of the Civil Procedure Act.
2. It is said that the application arises because the Slaveski parties did not comply with a consent order for the filing of the cross-claim so that the Nanevski parties now contend that the Slaveski parties need leave to file the cross-claim.
3. The Slaveski parties address those circumstances in Mr Slaveski's affidavit sworn 27 March 2020 (at [36]-[39]), which they maintain is an adequate explanation. It is noted that the Nanevski parties adduce no evidence of their own; and that they bring no cross-application for relief in respect of pleading deficiencies. It is again submitted that the proper outcome of any submissions of deficiencies in this pleading by the Nanevski parties through this application is a trial of all of the issues.

The Moneys Claims

1. As to the notices of motion in respect of each of the Moneys Claims proceedings, all of which have been transferred from the Local Court, the Slaveski parties note that the Nanevski parties' submissions on their application for the proceedings to be transferred was that if the proceedings were not transferred and all four proceedings were to be heard separately, there would be a risk of inconsistent findings, and so a likely waste of costs and risk of duplication. The Slaveski parties say that Darke J agreed and made orders to that effect in an ex tempore judgment on 1 July 2019.
2. The Slaveski parties point to Mr Ken Slaveski's affidavit sworn 27 March 2020 (at [46]-[47]) to the effect that the amendments have arisen from a consolidation of legal representatives and the current legal representatives' preference for them being amended to be more particular. Mr Slaveski's evidence at [48] is that the amendments have become more extensive and particular because of inter-parties' discussions by their counsel.
3. It is noted that there is no affidavit evidence from the Nanevski parties about this application. It is said that there is no cross-application by them from which it could be inferred that there is any criticism of the pleadings that would need to be analysed before the amendments are permitted. It is submitted that the proper outcome of any submissions of deficiencies in these pleadings by the Nanevski parties is a trial of all of the issues.
4. Again, it is said that the timing of this application to amend is not "late" within that meaning in Aon; that it will not result in a hearing being abandoned; that there is an adequate explanation for the delay; that there will be limited if any presumptive prejudice; and that it is in the public interest that the real issues in the proceedings are ventilated. Hence, it is submitted that the power to permit the amendments pursuant to sub-ss 64(1)(b) and (2) of the Civil Procedure Act should be exercised.

Consolidation and Fees Waiver

1. Each of the notices of motion seeks an order that each of the Moneys Claims be consolidated with the Partnership Proceedings pursuant to sub-r 28.5(c) of the UCPR. It is submitted that the reality facing the Slaveski parties is that for these amendment applications, they have had to prepare three separate motions and pay three further filing fees.
2. The Slaveski parties refer to [49] of Mr Ken Slaveski's affidavit sworn 27 March 2020, as to the payment of the filing fees. It is said (as is self-evident) that paying three further filing fees in this Court (for the separate motions) is more expensive than the Local Court; and it is submitted (which is less self-evident) that this is obviously unfair considering that it was the Nanevski parties' application to transfer the proceedings to this Court.
3. As I understand it, an application for fee relief was made in the Registry at the time the motions were filed but it was not dealt with then. The application is here made directly to the Court within its general power.
4. It is submitted that there is no reason in principle why there should not be an order that the Partnership Proceedings and Moneys Claims be tried together (and that does not appear to be disputed). The Slaveski parties seek to be relieved of paying more than one fee for applications "formally made", or when the Moneys Claims' hearing fees have to be paid.

Nanevski parties' submissions

1. In summary, Nanevski Developments describes itself as the "unfortunate target" of litigation instigated by its former business partners (the Slaveski parties). The Nanevski parties oppose the joinder of Mr Tom Nanevski to the Partnership Proceedings (on the basis that no party makes any allegation that Mr Tom Nanevski was a partner to anything); they complain as to the proposed filing of the new statements of claim in the Moneys Claims proceedings (which they say amount to entirely new statements of claim abandoning all of the pleadings and most of the causes of action relied on thus far); and as to the filing of what they refer to as "a discursive and embarrassing cross claim" in the Partnership Proceedings; and they oppose the withdrawal of what they say are verified admissions the Partnership Proceedings.
2. The Nanevski parties say that the just, quick and cheap resolution of the applications requires that the applications be substantially refused because the proposed amended pleadings are: "variously confused and confusing, circular, contradictory, inconsistently referenced, legally hopeless and otherwise fall well short of the pleading standards required by the UCPR". In other words, the Nanevski parties are highly critical of the amendments which they say "seek to dish up a 'soup' of submissions, evidence and quasi-legal propositions - sprinkled with irrelevant and non-material 'facts' - which do nothing to advance the real issues in dispute". They maintain that, if filed, the pleadings would all be liable to be struck out; and that, if not struck out, they would result in an enormous and undue waste of time.
3. The Nanevski parties complain of multiple defaults by the Slaveski parties in compliance with Court orders, and say that there is obvious prejudice to Nanevski Developments "which has had its partnership suit becalmed for the best part of a year while the Slaveski parties have had control of all the partnership property".
4. It is said that leave to withdraw the admissions made by Mr Ken Slaveski and Mr James Slaveski should be refused because the requisite full and proper explanations for the making of the admissions have not been provided (noting that Mr James Slaveski gives no evidence on his withdrawal application at all), and because the Slaveski parties have failed to satisfy the burden of showing that the admissions are actually wrong.

Repeated defaults of this Court's orders and unexplained delay

1. The Nanevski parties maintain that there has not been an adequate explanation for delay in the present case (citing Aon at [103], per Gummow, Hayne, Crennan, Kiefel and Bell JJ). It is noted that the absence of a full and satisfactory explanation for delay may be critical to the determination of an amendment application. Complaint is here made that the Slaveski parties do not address Aon other than to submit that their amendment applications are not "late" within the meaning in Aon (and without there being any definition of "late" in Aon). Reference is made to what was said in Kelly v Mina [2014] NSWCA 9 per Barrett JA at [47], with whom Leeming JA and I both agreed, as to the Court being required to take into account a combination of the factors identified in Aon. The Nanevski parties say that Aon is not restricted to "late" amendments, "whatever they are contended to be", and argues that amendments sought to be made after multiple opportunities to make them have not been taken up (and when any period allowed by the UCPR has expired) are certainly "late" for the purpose of the exercise of the discretion.
2. The Nanevski parties in their submissions then proceed to identify the following three "unsatisfactorily explained" defaults: the first, being the failure of the Slaveski parties to file and serve "any defence and cross claim" by 27 June 2019 (referring to the orders made by Pembroke J on 20 May 2019), the second being the failure to file and serve any amended statement of claim in the Moneys Claims proceedings and any cross-claim in the Partnership proceedings by 18 October 2019 (referring to the orders made by Darke J on 4 October 2019); and the third being the failure to comply with the orders made by Registrar Walton on 28 November 2019 (to which I have referred above).
3. As to the first, it is said that Mr Ken Slaveski in his affidavit sworn 27 March 2020 deposes in effect that he did not give instructions to file a cross-claim until July 2019, with no explanation for that delay (characterised by the Nanevski parties as "wilful non-compliance").
4. As to the second, the Nanevski parties point out that the orders made by Darke J on 4 October 2019 to transfer the matters to the Equity General list were made nearly three months after Rees J had set aside the Slaveski parties' statutory demand. The Nanevski parties say that the explanation now proffered by Mr Ken Slaveski (that it took longer to consult with his legal team than he expected) explains nothing about why that was so, what role the Slaveski parties played in the four month delay, or what Mr Ken Slaveski's expectation actually was, why he had the expectation, and why it was not met. It is said that this explanation is "inadequate in nearly every possible respect" (and it is noted that the solicitor for the Slaveski parties does not give any evidence to support or explain the contention).

Proposed further amended defence in Partnership Proceedings - Unopposed amendments

1. The Nanevski parties do not oppose the amendments to the amended defence insofar as they assert that any losses ought be shared on the taking of the partnership accounts, add further particulars, or seek to correct spelling, typographical, cross-referencing or other non-material errors. The other amendments are opposed for the following reasons.

Proposed withdrawal of admissions: Amendments sought to or by 10A, 11, 11, 11, 11, 12, 12A, 12A, 12, [14B] and [33A]

1. It is said that concessions to the effect that Mr Tom Nanevski and/or Nanevski Developments contributed towards the deposit of the Riverside Drive property are also made in 10A, 12, 12A and 12A of the amended defence.
2. It is noted that by their proposed amendments to all the above-mentioned paragraphs (including the addition of proposed new 11 and [14B] of the proposed further amended defence), Mr Ken Slaveski and Mr James Slaveski now seek to assert that Nanevski Developments or Mr Tom Nanevski did not financially contribute at all towards the deposit on the Riverside Drive property. It is said that, in doing so, they seek to resile from a "matter that operates for the benefit of another party", namely multiple verified concessions that $67,500 was contributed by Nanevski Developments or Mr Tom Nanevski (being someone in Nanevski Developments' camp). It is submitted that whether as a strict admission on pleadings or simply as a matter operating for the benefit of another party), r 12.6 of the UCPR is engaged.
3. The Nanevski parties say that, as a matter of logic, the status of the paragraphs as admissions cannot be altered by analysis of the particulars to the amended statement of claim or by the Nanevski parties' evidence or by the presence or content of any reply. (I accept that in principle that is so, but it begs the question here to be determined.)

Uncontested legal principles

1. It is noted that where leave to withdraw an admission is sought, a full and proper explanation for the making of the admission is required. It is said that the explanation must be a sensible one, based on evidence of a solid and substantial character; and that the party seeking to withdraw the admission must adduce clear evidence of how it was that the admission was made and why it should be permitted to be withdrawn.

Mr James Slaveski's admissions

1. The Nanevski parties submit that the fact that Mr James Slaveski has not filed any affidavit evidence on this application means that he has therefore not put forward the required "clear evidence" of how it was that he made his admissions in a pleading he verified by his affidavit on 19 July 2019 (see the affidavit appended to the amended statement of claim as filed on 4 October 2019). It is submitted that in those circumstances (he being the incoming registered proprietor of the Riverside Drive property and prima facie the person best able to give evidence as to the true source of the deposit for it), it can comfortably be inferred that Mr James Slaveski's evidence would not have assisted him on this application. (As to the inference I am here invited to draw, that does not seem to me to sit comfortably with the material before me, on which it appears that Mr Ken Slaveski was the moving party, albeit for the benefit of his son, in relation to the acquisition of the Riverside Drive property.)
2. In any event, the Nanevski parties submit that admissions "deliberately and formally made" should not be permitted to be withdrawn unless sufficient cause is shown why they should be, and that it was incumbent on Mr James Slaveski to give a full and proper explanation for the making of the admissions. In circumstances where Mr James Slaveski has shown no cause and provided no explanation, it is said that his application to withdraw his admissions must fail in limine.

Mr Ken Slaveski's admissions

1. As to Mr Ken Slaveski's submissions, the Nanevski parties say that the test as to whether leave should be granted to withdraw the admissions is not as to whether there is a triable issue in respect of their subject matter. It is said that Mr Ken Slaveski must establish that sufficient cause is shown for the admissions to be withdrawn. In particular, it is said that it is insufficient to show only that it was reasonably arguable that the admission be wrong for that purpose; rather, that Mr Ken Slaveski must satisfy the Court on the balance of probabilities that what he admitted was actually wrong. It is said that to be satisfied on the balance of probabilities of the existence of a fact, the Court must feel an actual persuasion of the existence of that fact; and that Mr Ken Slaveski bears the onus of persuading the Court that the admitted matters are wrong, and the proposed amendments are correct.
2. The Nanevski parties point to the following matters in support of their submission that the evidence adduced by Mr Ken Slaveski on this application would not give rise to an actual persuasion that either Nanevski Developments did not contribute $67,500 to the deposit on the Riverside Drive property or that he paid the whole amount himself.
3. First, they say that Mr Ken Slaveski's affidavit evidence "belatedly disclaiming" Nanevski Development's $67,500 contribution is entirely comprised of speculative hearsay. The Nanevski parties submit that this evidence is either inadmissible in its entirety or, at best, of very little weight.
4. Second, they say that the bank statement annexed to Mr Ken Slaveski's affidavit sworn on 27 March 2020 in fact shows that Nanevski Development's funds were included in the deposit. It is said that the bank statement clearly shows the credited cheque from Nanevski Developments (which Mr Ken Slaveski deposes is part of the credited sum of $74,697.47) being paid into the account on the same day as, and before, the deposit for the Riverside Drive property is withdrawn. It is said that Mr Ken Slaveski does not attempt to explain how the bank statement is relied upon to prove the opposite position.
5. Third, they say that what Mr Ken Slaveski's affidavit evidence does say about the bank statement is obviously wrong when compared with the statement itself. It is noted that he twice says that the deposit on the Riverside Drive property was provided by a "cheque" which he either arranged to be drawn (if his evidence in [23] of his affidavit of 27 March 2020 is to be believed) or drew himself (if his evidence in [24] is to be believed); whereas the payment was not made by a cheque at all (the bank statement shows it was an "Internet Transfer").

Other proposed amendments to amended defence

1. As to the remaining proposed amendments to the amended defence, the Nanevski parties oppose the following amendments: the proposed amendment at 12, on the basis that it seeks to introduce a matter that is not a material fact on the claim or its defence; the proposed amendment at 12A, on the basis that the final twelve words seek to roll up an unparticularised repudiation and breach; the proposed amendment at 14, on the basis that the final fourteen words are a submission; and the proposed insertion of [44A], on the basis that this seeks to introduce an unparticularised set-off agreement.

Proposed cross-claim

1. As to the proposed cross-claim against Nanevski Developments and Mr Tom Nanevski, the Nanevski parties emphasise that Mr Tom Nanevski is not a party to any of the proceedings. They say that he is joined to the amended notice of motion as a non-party respondent; and that the amended notice of motion seeks no relief against him and includes no order in terms for his joinder. Filing of the cross-claim is opposed. Apart from the delay, the Nanevski parties raise the following matters in opposition to the filing of the proposed cross-claim.

• Paragraphs 1-18 (proposed claim for an account against Mr Tom Nanevski)

1. It is noted that these paragraphs of the proposed cross-claim seek orders for accounts of the partnership (or what the Slaveski parties refer to as a "joint endeavour that failed"). The Nanevski parties say that leave to file the pleading in its current form should be refused, for two reasons.
2. First, that to the extent that the proposed pleading contends that "no contributions" were made by Nanevski Developments to the Riverside Drive property, this is contrary to the admissions in the amended defence. (To that extent, therefore, the Nanevski parties' opposition turns on success in opposing the leave for the filing of the proposed further amended defence.)
3. Second, that the proposed cross-claim seeks a contingent order for an account in respect of the Riverside Drive property if it is found that the Slaveski parties were in a partnership or joint venture with Nanevski Developments and Mr Tom Nanevski. The Nanevski parties say that this wrongly asserts that this is the position alleged by Nanevski Developments in its amended statement of claim (i.e., that there was a partnership between the Slaveski parties and both Nanevski Developments and Mr Tom Nanevski in respect of the Riverside Drive property). The Nanevski parties say that, in respect of the Vista Street property, the Slaveski parties seek an account for any partnership or joint venture found to exist between them and Mr Tom Nanevski only (but this position is contrary to the pleaded partnership which is with Nanevski Developments only).
4. The Nanevski parties say that Nanevski Developments makes no allegation that Mr Tom Nanevski was a party to the alleged Partnership agreement; and they note that the Slaveski parties make no such allegation in their proposed cross-claim (rather, it is said, they expressly eschew it).

Proposed amendments to Local Court Moneys Claims

1. Complaint is made that the Slaveski parties now seek to replace the short form "admirably concise" Local Court Moneys Claims (in which Mega-Top Cargo seeks repayment from Nanevski Developments for amounts allegedly rendered by, or paid by, Mega-Top Cargo in the course of the partnership), to which Nanevski Developments has filed defences to the effect that any amount due is an expense or debt of the partnership, with proposed amended pleadings of considerably greater length.
2. It is said that the proposed amendments now mostly seek to abandon the cause of action in debt and to and replace the claims with claims for breach of contract, and in restitution and quantum meruit. Complaint is made that the proposed pleadings are "discursive, embarrassing, circular, confusing, legally hopeless and otherwise fall far short of the pleading standards required by the UCPR."
3. The Nanevski parties say that the concessions by Counsel for the Slaveski parties (both as to the existence of a good cause of action on the current pleadings and as to the reason for the proposed amendments - namely that they have arisen from a consolidation of legal representation and the preference for the claims to be amended to be more particular) are relevant to the exercise of the discretion to grant leave. It is said that the interests of justice and the determination of the real issues in dispute will not be served by an "enormously expanded" amendment which is not said to be necessary to protect a right, but rather only "nice to have". Insofar as Mr Ken Slaveski (in his affidavit sworn 27 March 2020) describes the amendments as variously to make the pleadings "more particular", "more specific", "easier ... to understand", and "more extensive", it is emphasised that Mr Ken Slaveski does not swear that they are necessary (and nor does his solicitor).
4. It is noted that the time within which Mega-Top Cargo could have made such amendments without leave expired 28 days after the filing of the claims in the Local Court (and criticism is again made of the submission that the amendment applications are not "late" within the meaning in Aon without further elaboration).
5. The Nanevski parties also raise specific complaints as to the separate Moneys Claims as further reasons why leave to file the amended statements of claim should be refused.

Matter 2018/00357790: "windows claim"

1. In this claim, Mega-Top Cargo seeks payment for "logistic services" rendered as per four identified invoices totalling $24,000. It is noted that the invoices state that the services relate to the importation of some Greek windows and that Nanevski Developments has filed a defence and has taken no issue with the pleading in its current form.
2. It is said that, by the proposed amendments, Mega-Top Cargo now seeks to abandon any claim in respect of one of the four invoices, and introduces "discursive and embarrassing" new contractual and equitable claims (the quantum meruit claim increasing the amount claimed from $24,000 to over $100,000).
3. The Nanevski parties say that if the amended pleading were filed it would be liable to be struck out or, if not struck out, it would lead to a great deal of wasted time on non-material or hopeless matters and would inhibit rather than advance the resolution of the real issues in dispute. Having regard to the statutory imprimatur in the Civil Procedure Act, it is submitted that the discretion ought to be exercised to allow the amendments only insofar as they abandon the current pleading.
4. Particular complaint is made as to the following matters.
5. It is noted that in the proposed amendments, [1]-[25] of the current statement of claim are replaced with a new contractual claim for breach of what is said to be a partly express and partly implied agreement for the collection and shipping of the windows made on or about 22 March 2017 (see at [8]). It is submitted that the proposed new contractual claim is obviously hopeless since a claim for loss for breach of contract claim necessary sounds in damages, but that damages, while pleaded in [24], are not claimed as relief (and Mega-Top Cargo's solicitor has certified that the claim is not one for damages - which the Nanevski parties point out means that Mega-Top Cargo is not subject to the restrictions on commencing proceedings for damages without reasonable prospects of success).
6. As to [9]-[10] of the proposed amendments, complaint is made that these paragraphs seek to plead what the express terms were "partly comprised" of without explaining what other source the express component of the contract was "partly comprised" of; and it is noted that Mr Ken Slaveski gives no evidence in support of these new pleaded "conversations" in his affidavit in support of the amendments (sworn 27 March 2020).

Matter 2019/00095013: "steel importation claim"

1. The second of the three Moneys Claims, as currently pleaded, is a debt claim particularised in respect of eight allegedly unpaid invoices relating to steel importation, totalling $60,000. It is noted that Nanevski Developments has filed a defence and has taken no issue with the pleading in its current form.
2. It is noted that, by its proposed amendments, Mega-Top Cargo seeks to reduce the quantum of its claim from $60,000 to $7,000 (abandoning its debt claim entirely and introducing new "defectively pleaded" contractual and equitable claims). The proposed amendments would expand the pleading from two paragraphs to twenty-four paragraphs. It is said that the proposed pleading suffers from all of the issues identified in relation to the windows claim, but also from the following further matters.
3. As to the abandonment of the cause of action in debt, it is noted that, in the proceedings before Darke J, Mr Ken Slaveski conceded that three of the eight invoices totalling $53,000 in fact had been paid (including one in the amount of $51,000 which he deposed to receiving before the commencement of the proceedings on 1 May 2017), and blamed an "inadvertent accounting error" in that regard. The Nanevski parties complain that, whatever characterisation may be put on that evidence, Mr Ken Slaveski has subsequently done nothing to correct the error and says nothing about it in his affidavit (sworn 27 March 2020) on this application.
4. The Nanevski parties do not appear to quarrel with the abandonment of the claims in respect of the three invoices which Mega-Top Cargo now accepts have been paid (they say it should have done so long ago), but what the Nanevski parties contend is that the matter should proceed to hearing in respect of the balance of the claim (as presently pleaded).
5. The Nanevski parties identify the following further difficulties with the proposed pleading. First, that [16] of the proposed amendments seeks to plead the further implication of the express standard trading terms, arising from Nanevski Developments' use of other services from Mega-Top Cargo. However, the Nanevski parties note that the key invoices pleaded for those other services are dated after the alleged contract is said to be formed. It is said that the invoices themselves confirm that they are for services rendered after the contract is alleged to have been formed in July 2015 (referring by way of example to invoice S00007556/G dated 9 October 2015, in respect of goods estimated to depart China on 11 September 2015; invoice #S00064081 dated 7 October 2015, with its only line item being a charge for storage "for the month of October 2015").

Matter 2019/00095876 "formwork claim"

1. The third of the three Moneys Claims was commenced in the Small Claims Division of the Local Court as a debt claim in respect of two invoices totalling $7,000. It is noted that the proposed amendments seek to expand that to five invoices totalling approximately $14,000, and that the pleading is sought to be increased from two paragraphs to 64 paragraphs claiming five new contracts and abandoning the original debt claims are sought to be entirely abandoned.
2. Again, it is said that the proposed new pleading suffers from all of the deficiencies identified in the other matters above "and more". The Nanevski parties expressly eschew an exhaustive analysis of all the deficiencies. They say that the appropriate order is for leave to be refused to make the amendments except to the extent they abandon the existing claims.

Consolidation

1. As to the claim for consolidation of the respective proceedings, the Nanevski parties accept that all proceedings ought to be heard together. The Nanevski parties say that it would be most undesirable for separate hearings to occur for each of the proceedings in light of the significant overlapping of subject matter, and that all parties will benefit from having all issues determined in the one court in the one hearing; and that this is the very reason the Nanevski parties applied for the Moneys Claims to be transferred to this Court in the first place.
2. Insofar as the Slaveski parties seek a further (and, it is said, more unusual) order for consolidation, the Nanevski parties say that this position appears directly contrary to the evidence given by Mr Ken Slaveski before Darke J (and said to have been rejected by his Honour) that: "[t]he invoices sued on by the Mega Top (sic) in [the] Local Court Proceedings [...] do not relate to the [Riverside and Vista St] properties or to any partnership or joint venture that is alleged to have existed between the parties in these proceedings. Rather, each of the Local Court Proceedings relates to business dealings between Mega Top and Nanevski Developments. These dealings are exclusive to any alleged partnership agreement or joint venture between the parties in these proceedings". It is noted that Mr Ken Slaveski repeats on this application his assertion that the facts of the Local Court proceedings and the partnership proceedings "do not overlap" (citing [45] of Mr Ken Slaveski's affidavit, sworn 27 March 2020).
3. That said, the Nanevski parties do not wish to be heard against an order for formal consolidation (as opposed to the hearing together of the proceedings) if that be considered appropriate.

Proposed further amended defence in Partnership Proceedings

1. The first issue to be determined in this regard is as to whether the proposed further amended defence amounts to a withdrawal of an admission or of a matter that operates to the benefit of the Nanevski parties within the meaning of r 12.6 of the UCPR (since although leave is required in any event for the further amendment to the amended defence, the test for withdrawal of an admission differs from that applicable when the issue is simply as to whether leave should be given to amend per se).
2. Rule 12.6 of the UCPR relevantly provides that: (1) A party raising any matter in a defence or subsequent pleading may withdraw the matter at any time. (2) Despite subrule (1), a party may not withdraw any admission, or any other matter that operates for the benefit of another party, except with the consent of the other party or by leave of the court. …
3. A similar issue arose for consideration in Sergi v Sergi to which the Slaveski parties here refer (and place reliance on for their contention that there are no relevant admissions being sought to be withdrawn). There, Darke J considered whether the proposed deletion of the allegation (contained in [9] of a cross-claim) of a partnership at will (and its incorporation by reference into the defence) amounted to a withdrawal of an admission, or other matter that operated to the plaintiffs' benefit, within the meaning of r 12.6(2) of the UCPR, such that leave was required for its withdrawal. The contention of the plaintiffs in that case was that no adequate explanation had been given for the change in course; that the evidence given in support of the new allegations was not satisfactory; and that the circumstances suggested that the change in course is a tactical device designed to defeat the plaintiffs' claims under s 66G of the Conveyancing Act 1919 (NSW), and to avoid summary judgment on those claims (at [15] of Sergi v Sergi).
4. His Honour referred at [22] to Gzell J's statements at [1]-[2] in Khouri v National Australia Bank Ltd [2007] NSWSC 987 (Khouri) and, though expressing some doubt as to whether r 12.6(2) applies to pleadings other than defences or subsequent pleadings, proceeded on the basis that it could apply to a cross-claim. Darke J nevertheless concluded that the pleading in the cross-claim (that the partnership was a partnership at will) was not an admission within the meaning of r 12.6(2) of the UCPR (at [23] of Sergi v Sergi). His Honour said: 23. … In the context of pleadings, an admission by a party can arise in response to an allegation made by an opposite party (see UCPR r 14.26). That is not the case where a party makes an assertion that is contained within a statement of claim or a statement of cross-claim.

Applicable principles for leave to withdraw an admission or other matter that operates for the benefit of the opposing party

1. The second relevant issue is, on the basis that I have concluded that leave to withdraw is required, whether leave should be granted.
2. As to the applicable principles for leave to be granted on such an application, in Sergi v Sergi, Darke J referred to: SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816 (SLE Worldwide) at [55]-[56], per White J (as his Honour then was); In the matter of Dymocks Book Arcade Pty Limited [2013] NSWSC 298 at [8]-[13], per Brereton J (as his Honour then was); and Fabrizio v Wickham Hill Investment Pty Ltd [2018] NSWSC 612 at [68]-[69], per Robb J.
3. In their written submissions on the present application, the Nanevski parties referred to the approach of Brereton J, as his Honour then was, in Stafford v Kekatos (No 2) [2008] NSWSC 1044 (Stafford). In Stafford, Brereton J referred to his own then recent consideration of the relevant principles on such an application in Hill End Gold Ltd v First Tiffany Resource Corp [2008] NSWSC 866, and to the observations of Young CJ in Eq (as his Honour then was) in Sirius Shipping Corporation v The Ship Sunrise [2006] NSWSC 164, and For the Good Times Pty Ltd v Coltern Pty Ltd [2007] NSWSC 108, noting that the question is one of the attainment of justice rather than trying to apply an artificial approach according to any fixed set of rules (see at [14]). At [14]-[15] of Stafford, Brereton J, referring to the observations of Young CJ in Eq in the cases referred to above, said: 14. … His Honour emphasised that the Court is after the truth, and that in principle an erroneous submission should be able to be withdrawn unless outweighed by other factors, the chief of which is prejudice to the other party. His Honour added that there must be some evidence as to how the admission was made, and there must be some material to show that it was erroneous. 15. In Hill End Gold, I identified the essential questions for the court as being: First, was the admission wrongly made? That is, was the admission erroneous? Secondly, was the admission made inadvertently and is there an adequate explanation for it? That is, in essence, was the process which led to the admission one which resulted from mistake, confusion or inadvertence rather than a deliberate course of conduct? And thirdly, where does the balance of prejudice lie? Those considerations I think sufficiently inform the approach to be taken on the present application.

Other complaints as to the proposed further amendment of the amended defence in the Partnership Proceedings

1. Leaving aside the complaint as to the withdrawal of the admissions, there is opposition to various aspects of the proposed further amendment of the amended defence in the Partnership Proceedings (as well as to the proposed filing of the cross-claim, and the amendments sought to the statements of claim in the Moneys Claims Proceedings). Unsurprisingly, the Nanevski parties do not object to amendments to the amended defence that operate in their favour, and it is not necessary here to consider those.
2. The general principles applicable to the question of leave for the amendment of the pleadings (here sought in respect of both the defence in the Partnership Proceedings, and in the filing of amended statements of claim in the Moneys Claims Proceedings) or for the filing out of time of the cross-claim in the Partnership proceedings, can be set out at the outset. As has been set out above, the Nanevski parties have raised a raft of pleading issues (and were, to put it mildly, not complimentary of the drafting efforts in this regard).
3. Section 64 of the Civil Procedure Act provides, relevantly: 64 Amendment of documents generally (cf SCR Part 20, rules 1 and 4; DCR Part 17, rules 1 and 4) (1) At any stage of proceedings, the court may order - (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to s 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. …
4. In Aon, French CJ (at [14]) noted the distinction between the discretion of a court to allow a party to amend its pleading on that party's motion and the requirement to make all such amendments as may be necessary to determine the real questions in controversy (the latter engaging with the authority conferred on the court to make amendments of its own motion).
5. Subject to any rights to amend without leave given to the parties by the court rules, the question of further amendment of a party's claim is dependent upon the exercise of the court's discretionary power, which must be in accordance with s 64(2) of the Civil Procedure Act and must adhere to the "dictates of justice" (ss 56, 57 and 58 of the Civil Procedure Act). In Aon, the factors to be weighed in the exercise of this discretion were said (at [102], per Gummow, Hayne, Crennan, Kiefel and Bell JJ) to include: the nature and importance of the amendments to the applicants; the effect of the proposed amendments on the defendants; the delay in making the amendments; and, where there is delay in applying for amendment, whether an adequate explanation for the delay has been given.

Proposed cross-claim

1. As already noted, the Nanevski parties have pointed to the delay in compliance with orders for the filing of a cross-claim over a period of some months, which they say is unexplained. The prejudice to which the Nanevski parties point in relation to the filing of a cross-claim at this stage of the proceedings seems largely to be arising out of that delay in that they are out of their money (having contributed, on their case, somewhere between $200,000 and $900,000 in respect of the two properties in question) (see T 34).
2. I am not persuaded that the prejudice there identified is sufficient to outweigh the prejudice to the Slaveski parties if the real issues in dispute cannot properly be ventilated at this point.
3. As to the pleading complaints here raised, I make the following comments.
4. As to the complaint as to [1]-[18] of the proposed cross-claim, these relate to the proposed claim for a partnership account to be taken as against Mr Tom Nanevski (which presupposes that he was a partner to a partnership in relation to the Riverside Drive property). In essence the complaint by the Nanevski parties is that there is no claim for relief premised on a cause of action against him personally and it is said that there is no reasonable possibility that a finding will be made that he is a partner (as it is not contended for by any of the parties). Hence, they say, these paragraphs should not be permitted to be introduced (and, by extension, Mr Tom Nanevski should not be joined as a party to the proceedings).
5. The relief expressly sought against Mr Tom Nanevski (who is named as the first cross-defendant in the proposed cross-claim) is, broadly speaking, premised on a finding that there is a partnership or joint venture found to exist between the Slaveski parties on the one hand (or at least Mr Ken Slaveski and Mr James Slaveski) and Mr Tom Nanevski (and/or Nanevski Developments) on the other hand - see the relief claimed in prayers 1-6 of the proposed cross-claim; and prayer 7 (which is premised on Mr Tom Nanevski having an unregistered proprietary interest of some kind in either of the Riverside Drive and Vista Street properties).
6. The proposed cross-claim denies that there was a partnership agreement for the development of the Riverside Drive property (see at [4]); but appears to incorporate the allegations in the proposed further amended defence as to a joint endeavour that failed (see [6] of the proposed cross-claim). In particular, reference is made to [14] and [14A] of the proposed further amended defence to the effect that the extent of any proprietary interest of Mr Tom Nanevski or Nanevski Developments in the Riverside Drive property is limited to an equitable charge in respect of their contributions to the amount by which their monthly principal and interest repayments to the NAB reduced the amount of money owing to the NAB (see at [5] of the proposed cross-claim).

Proposed amendment to Moneys Claims Proceedings pleadings

1. The issues relating to delay are broadly the same as those considered above and I remain of the view that the delay to date is not sufficient to outweigh the prejudice of not permitting all disputes between the parties to be dealt with once and for all. However, the issue as to prejudice is put on the basis that the Nanevski parties would be unfairly prejudiced in having to respond to new claims which raise "an enormous number of irrelevant and subsidiary issues", in circumstances where complaint is made that the Slaveski deponents have not identified that the amendments to the Moneys Claims Proceedings are "necessary".
2. It seems to me that the explanation for the amendments to the pleadings in these three proceedings makes sense. There was a short form pleading in respect of small money counts in each of the claims. There has been a review of the matter and it has been accepted that some of those claims are not able to be maintained but that there are other claims that relate to the same subject matter of each of those proceedings. As noted above, there is obviously an interest in all the disputes between these parties finally being able to be resolved.
3. The Slaveski parties say that the delay in the filing of the motions seeking amendments to the pleadings in those proceedings was not in making the application per se but in having to correct the procedural form in which it was made (see T 37.9). It is said that almost every document requested in the particulars to the Moneys Claims Proceedings has been provided to the Nanevski parties so that the documentary case is already known (T 37.25).
4. I do not accept that there is a proper basis for complaint in circumstances where it is evident that the disputes between the parties will occupy court time and expense and it makes sense not to leave out of the overall suite of proceedings the claims that have now emerged on a review of the documentary records nor to preclude the Slaveski parties from pleading those claims properly.
5. I will give leave for the filing of the amended statements of claim in those proceedings. (It would make sense for the separate statements of claim to be consolidated in one proceeding but I am concerned that this will simply increase the cost for little benefit.)

Consolidation of proceedings (and the fee waiver application)

1. There is no dispute between the parties that it is sensible for the respective matters to be heard at least consecutively. An order to that effect will be made. As to the application for fee waiver, the Registry is better placed to deal with such an application (and it is not a sensible allocation of court time for a judge to be pressed with such an application). My inclination, were I to have determined this part of the application, would have been to say that it was the choice of the Slaveski parties to commence the separate proceedings as they did; and, if they now bear additional costs as a result of that forensic decisions, so be it.
2. As for the hearing fees, if the three Moneys Claims Proceedings were consolidated into one proceeding, then that might well obviate unnecessary fees, but it would no doubt be at the cost of preparation of a consolidated pleading. If the separate claims can be dealt with as severable parts of the one overall hearing then it may be that hearing fees can be set accordingly. I leave that for the Registry to determine, at least in the first instance.

Conclusion

1. For the reasons set out above, subject to one qualification, I will grant leave for the filing of the proposed further amended defence and for the filing of a cross-claim in the Partnership Proceedings (albeit with the re-pleading of [53] of the proposed further amended defence and such amendments as are necessary to correct cross-referencing or typographical errors in that or the proposed cross-claim); and for the filing of the amended statements of claim in the Moneys Claims Proceedings; and I will direct that the matters be heard consecutively. The qualification I make is that I am not persuaded that there is a cause of action pleaded against Mr Tom Nanevski personally that would warrant his joinder as a party to the cross-claim (nor does he appear to be a necessary party to be joined unless it can be said that his interests may be affected by a determination of the dispute other than in his capacity as the director and shareholder of Nanevski Developments). Therefore, unless a cause of action is pleaded that would sustain the relief sought against him personally in the proposed cross-claim, leave to file the proposed cross-claim will not extend to those claims for relief and he should not be joined as a party.
2. As to costs, the Slaveski parties have in the main succeeded on their motions and in the ordinary course one would expect that costs would follow the event. However, leave was necessary for the withdrawal of the admissions and there is much to be said for the view that the position in which the Slaveski parties were in was one that was largely of their own making in terms of the forensic decisions made as to earlier pleadings and delay in compliance with court orders. That said, the largely intransigent (and intemperate) stance of the Nanevski parties no doubt contributed to the cost of the present applications. I quite understand the frustration of the Nanevski parties in the course of this matter. However, it is incumbent on legal practitioners to work co-operatively in order to comply with the statutory mandate for the just, quick and cheap resolution of the real issues in dispute and the tone of the submissions made on this application suggests that there may have been an unhelpful adoption of fixed stances in this matter. Therefore, I propose to order that the costs of the notices of motion be the defendant's costs in the respective causes.

Orders

1. I make the following orders in the respective proceedings:

Partnership proceedings (2019/00153341) 1. Pursuant to r 12.6 of the UCPR, grant leave to the defendants to withdraw the admissions made at [11] of their amended defence by the filing of the further amended defence (Further Amended Defence) in the form annexed to the defendants' amended notice of motion filed 14 April 2020. 2. Grant leave to the defendants to file and serve the Further Amended Defence but with amendment to plead specifically the facts, matters and circumstances relied upon for the allegation at [53] of the proposed further amended defence; and direct that a verified copy of the Further Amended Defence be filed and served within seven days. 3. Grant leave to the defendants to file and serve a cross-claim in the form of the cross-claim annexed to the defendants' amended notice of motion filed 14 April 2020, but with amendment to correct typographical or cross-referencing errors and to take into account the reasons insofar as the claims for relief against Mr Tom Nanevski personally are concerned. 4. Order that the defendants pay the plaintiffs' costs thrown away by the amendment to the amended defence. 5. Otherwise order that the costs of the defendants' amended notice of motion filed 14 April 2020 be the defendants' costs in the cause. 6. Order that this proceeding be listed at the same time (for directions and for hearing in due course consecutively) as the following matters (2018/00357790; 2019/00095013; and 2019/00095876). 7. Stand the matter over for directions before me on 26 May 2020 at 8.30am. 8. Refer the matter to court-annexed mediation on a date to be fixed on 26 May 2020.

Windows proceeding (2018/00357790) 1. Grant leave to the plaintiff to file and serve the amended statement of claim annexed to the plaintiff's notice of motion filed 3 April 2020. 2. Order pursuant to rule 28.5(c) of the UCPR, that this proceeding be listed at the same time (for directions and for hearing in due course consecutively) as the following matters (2019/00153341; 2019/00095013; and 2019/00095876), 3. Remit to the Registry the application for waiver of the plaintiff's fees for the filing of the plaintiff's notice of motion filed 3 April 2020. 4. Order that the costs of the plaintiff's notice of motion filed 3 April 2020 be the plaintiff's costs in the cause. 5. Stand the matter over for directions before me on 26 May 2020 at 8.30am. 6. Refer the matter to court-annexed mediation on a date to be fixed on 26 May 2020.

Steel importation proceeding (2019/00095013) 1. Grant leave to the plaintiff to file and serve the amended statement of claim in the form annexed to the plaintiff's notice of motion filed on 2 April 2020. 2. Order pursuant to rule 28.5(c) of the UCPR, that this proceeding be listed at the same time (for directions and for hearing in due course consecutively) as the following matters (2019/00153341; 2018/00357790; and 2019/00095876), 3. Remit to the Registry the application for waiver of the plaintiff's fees for the filing of the plaintiff's notice of motion filed 2 April 2020. 4. Order that the costs of the plaintiff's notice of motion filed 2 April 2020 be the plaintiff's costs in the cause. 5. Stand the matter over for directions before me on 26 May 2020 at 8.30am. 6. Refer the matter to court-annexed mediation on a date to be fixed on 26 May 2020.

Formwork proceeding (2019/00095876) 1. Grant leave to the plaintiff to file and serve the amended statement of claim annexed to the plaintiff's notice of motion filed on 2 April 2020. 2. Order pursuant to rule 28.5(c) of the UCPR, that this proceeding be listed at the same time (for directions and for hearing in due course consecutively) as the following matters (2019/00153341; 2018/00357790; and 2019/00095013). 3. Remit to the Registry the application for waiver of the plaintiff's fees for the filing of the plaintiff's notice of motion filed 2 April 2020. 4. Order that the costs of the plaintiff's notice of motion filed 2 April 2020 be the plaintiff's costs in the cause. 5. Stand the matter over for directions before me on 26 May 2020 at 8.30am. 6. Refer the matter to court-annexed mediation on a date to be fixed on 26 May 2020.

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