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[2025] VSC 515
General information, not legal advice.
Supreme Court of Victoria
2025-08-25
Attiwill J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Application for leave to amend statement of claim and file further evidence - Where application filed three months prior to trial - Where proposed amendments introduce new claims - Where leave opposed due to delay and likelihood of adjournment of trial - Where delay in making the application is explained, but not excused, by new solicitors and counsel casting 'fresh eyes' over the proceeding - Where plaintiff failed to comply with earlier orders - Where, if leave is granted, the trial will be adjourned - Court available to hear the proceeding in February 2026 - Leave granted to amend pleading and file new evidence - Carroll v Goff [2021] VSCA 267; Cargill Australia Limited v Viterra Malt Pty Ltd (No 18) [2018] VSC 772; Billington v Sussan Corporation Australia [2020] VSCA 12, applied.
4 The material filed on this application is of inordinate length and obscures the real issues in dispute. It is productive of wasted costs for the parties and wasted Court time and resources. The Court raised these matters with the parties at the commencement of the hearing. This dispute concerns well established law. It concerns the exercise of a discretion on a matter of practice and procedure. The opposed amendments were not opposed on the basis that they are hopeless or have no real prospects of success. Despite this, the material is constituted by affidavits which make legal submissions, even though there were separate submissions of counsel, and contain 498 pages of exhibits, including extensive correspondence between the solicitors, a separate tender bundle of 158 pages, of which only a handful documents were referred to, and a joint authorities bundle of 562 pages of which the Court was taken only to a few authorities during the hearing. As a result, much of the material did not assist in the resolution of the real issues in dispute. This is in stark contrast to the helpful and concise submissions of counsel at the hearing.
5 This ruling assumes a familiarity with the parties' pleadings, the opposed amendments and the further proposed lay and expert evidence.
6 The applicable law is well established. Rule 36.01(1)(a) empowers the Court to grant leave for a pleading to be amended for the purpose of determining the real question in controversy between the parties. In Cargill Australia Limited v Viterra Malt Pty Ltd (No 18),[2] Elliott J said:
7 In Carroll v Goff,[4] the Court of Appeal said:
8 In Aon Risk Services Australia Ltd v Australian National University,[6] a majority of the High Court said:
A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.[7]
It is true that a punitive response to the substance of a late amendment application is not appropriate. But neither is a party to be rewarded by weighing in its favour the disruptive consequences of its own application.[8]
10 In Billington v Sussan Corporation Australia,[9] the Court of Appeal considered a delay in seeking to amend a pleading in circumstances in which the amendment was made as a result of the party retaining new counsel. The Court of Appeal said '[t]hat explanation was by no means an adequate excuse for the delay'.[10]
11 Further, Doyle J in PPG Development Pty Ltd v Capitanio[11] said:
[T]he courts should not be too willing to permit amendments simply because they are the product of further or more detailed consideration being given to an issue by a party's legal representative, or the product of a fresh set of eyes. As to this last consideration, while a relevant consideration, the retention of new counsel should not operate to reset the litigation clock or otherwise give the party in question a licence to amend. To so hold would be to undermine the approach required by Aon Risk Services.[12]
12 Recently, Derrington J in Murden v NM Superannuation Pty Ltd as trustee of the AMP Super Fund[13] said:
I have referred to the explanation for the application to amend and its timing. I found that the explanation for the application to amend and its timing was the fresh advice from new senior counsel retained by the plaintiff. Again, as Doyle J explains in PPG Development this is not an entirely satisfactory explanation. While courts are reluctant to visit parties with the consequences of oversight by the legal representatives, the Court should not be too willing to permit amendments simply because they are the product of further or more detailed consideration being given to an issue by a party's legal representative or the product of a fresh set of eyes. The retention of new counsel should not operate to re-set the litigation clock or otherwise give the party in question a licence to amend. To do so would be to undermine the approach required by Aon.
(Emphasis added).
- Though the appeal from that decision was unsuccessful, the status of his Honour's conclusion was left unclear, despite it being plainly correct: Commonwealth v Saadat (2019) 134 SASR 184, 205-206 [84]-[85]; WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 10, [20]; but see Diakou Nominees Pty Ltd v Gouger Street Pty Ltd; Gouger Street Pty Ltd v Diakou Nominees Pty Ltd [2020] SASC 124, [75].[14]
13 The Court also must have regard to the relevant provisions of the Civil Procedure Act 2010 (Vic) when addressing case management matters, including applications for leave to amend and to file further documents such as expert reports and witness statements/outlines. This includes s 7(1) that provides:
The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute.
14 Aurelius has the onus of establishing that the discretion to grant leave to make the opposed amendments should be exercised in its favour.
Are the opposed amendments important to Aurelius' case? Will Aurelius be prejudiced if the Court does not give leave?
15 The opposed amendments are important to Aurelius' case. It will be materially prejudiced if the Court does not give leave to make them.
16 First, the opposed amendments concern, inter alia, two separate substantive causes of action.
17 Aurelius seeks to advance a new claim that Orica breached a warranty in the share purchase agreement in an additional respect. This is paragraph 20(a1) of the opposed amendments. Aurelius presently claims that Orica breached the warranty by providing Aurelius with pre-completion accounts that were not true and accurate but now seeks to add that Orica breached the warranty as the accounts were not prepared with 'due care and attention'.
18 Aurelius also seeks to advance a new claim that Orica engaged in misleading and deceptive conduct in an additional respect by providing Aurelius a suite of documents prior to completion of the share purchase agreement.
19 Second, Orica does not submit that the claims have no real prospects of success.
20 Third, Mr Redwood SC has given advice to Aurelius that its case is best presented at trial based upon, inter alia, the claims the subject of the opposed amendments.
22 As a result, this is a significant factor in favour of the grant of leave.
Has Aurelius delayed in bringing the claims the subject of the opposed amendments? If so, has the delay been explained and can it be excused?
23 The proceeding was commenced on 28 April 2023. It concerns a share purchase agreement made on 13 December 2021 which completed on 28 February 2022. On about 20 May 2022, Aurelius provided Orica with a document setting out a notice of its claims under the share purchase agreement.
24 On 8 March 2024, the Court listed this proceeding for trial on 7 April 2025 on an estimate of 7 days. Despite extensions to the time for filing of its lay and expert evidence throughout 2024, Aurelius repeatedly failed to comply with Court deadlines and was poor in communicating with Orica about these matters. I generally refer to the detailed chronology of these matters provided by Mr Oliver at paragraphs 12 to 31 of his affidavit, which was not substantively disputed by Aurelius.
25 From around the end of 2024 the working relationship between Aurelius and its then lawyers, Baker McKenzie, became increasingly strained and at that time and in early 2025 Aurelius had various concerns as to the conduct of the litigation and the approach of Baker and McKenzie.
27 On 21 February 2025, the trial was adjourned by consent to 20 October 2025 (subsequently advised by the Court to commence on 23 October 2025 due to a Court conference). I am not in a position to now adjudicate on whether Aurelius alone was responsible for the adjournment. Orica consented to it. The adjournment was consented to by Orica in circumstances in which Aurelius contended, at the time, that it would not be ready for trial for a variety of reasons, including having regard to disputes concerning pleadings and discovery. For example, I refer to the letter from Baker McKenzie to Gilbert + Tobin dated 24 January 2025. But I do take into account that the trial has already been previously adjourned.
28 In early April 2025, Aurelius engaged Mr Redwood SC to provide independent legal advice on certain 'discreet issues'. Mr Redwood SC provided his advice on 8 April 2025. No explanation is provided for why this was not attended to earlier than early April 2025. The issues upon which he gave his advice are unknown. It cannot be inferred that it concerned the claims the subject of the opposed amendments. Aurelius' former solicitors, Baker McKenzie, withdrew their representation on 17 April 2025. In my view, the reasons for the withdrawal are not relevant to the issue of delay from the commencement of the proceeding to the date of their withdrawal.
29 In his second affidavit, Mr Seyd-Von Jagemann gave evidence:
I was aware that there had been delays in meeting various deadlines set by this Court. Whilst I expressed concern as to these matters, I ultimately deferred to the advice of Baker McKenzie AU and the previous counsel team as to the significance of these matters of Court procedure. However, as the failure to meet deadlines continued, this became one of the matters that caused the working relationship to become increasingly strained and caused me to hold concerns as to the conduct of the litigation.
30 On 23 April 2025, KWM had its first communication with Aurelius.
31 Later in April 2025, Aurelius instructed KWM to appear for it in this proceeding, filed a notice of change of solicitor, and informed the Court of its view that the procedural timetable would need to be amended to accommodate the late filing of its further witness statements. Around this time, a new counsel team was retained to represent Aurelius in the proceeding.
32 Between 29 April 2025 and 17 June 2025, Baker McKenzie transferred its file to KWM. By 16 May 2025, KWM had received the bulk of the file, save for hearing transcripts and correspondence between Baker McKenzie and Aurelius which were received on 17 June 2025.[15] Further, Mr Godfree gave evidence that:[16]
(a) I attended various conferences with Mr Seyd-von Jagemann;
(b) I attended conferences with Mr Laufer, one of Aurelius' lay witnesses;
(c) I attended conferences with Mr Meredith, Aurelius' independent expert;
(d) I instructed solicitors to review the substantial volume of documents that had been provided to KWM as part of the transfer of the file; and
(e) I considered and evaluated, together with Counsel, whether any amendments were required to the FASOC and whether any additional evidence was required to support Aurelius' claim.
22 The transfer of the file and the transition to KWM has been a very substantial and time-consuming task. The proceedings involve a substantial commercial dispute arising from large business combination transaction. Given my obligations under the Civil Procedure Act 2010 (Vic) and my duties to Aurelius, it has been necessary for me and members of my team at KWM, together with Counsel, to fully review voluminous documents and get across the various factual, legal and accounting issues presented by the proceedings.
33 Mr Oliver recalls a phone conversation on 16 May 2025 with Mr Godfree, where Mr Godfree briefly mentioned the prospect of Aurelius seeking further amendments to its pleading, without detailing what these amendments would involve.
34 A month later on 18 June 2025, KWM confirmed to Gilbert + Tobin that Aurelius would seek to file an amended pleading, and stated that it was Aurelius' position that a proposed amended defence for Orica could be deferred until Orica had the chance to consider the proposed amended pleading. KWM was of the view that this would not impact the trial date.
35 On 19 June 2025, Gilbert + Tobin informed KWM of a number of matters, including that:
(a) the trial was due to commence in only four months' time;
(b) Aurelius was proposing to amend its pleading but had not provided a draft of those amendments for Orica's consideration;
(c) while Orica acknowledged the need for KWM to read into the matter, KWM was instructed two months before and Orica was of the view that it had ample time to consider amendments to the pleading;
(d) Orica had concerns that Aurelius' delays would unfairly prejudice its ability to adequately prepare its case;
(e) Orica wished to receive the proposed 2FASOC as soon as possible so that it could consider its position.
36 On 24 June 2025, KWM sent the proposed pleading to Gilbert + Tobin, and provided the new lay and expert evidence on 4 July 2025. As a result, it took just over 2 months from the time Aurelius engaged new lawyers for it provide a proposed amended pleading. I also note that this was 4 months prior to the trial.
37 On 11 July 2025, Gilbert + Tobin confirmed that it was considering the proposed pleading, and requested certain documents referred to in the new lay and expert evidence. Gilbert + Tobin also stated that Aurelius should get on with making its application for leave to amend and to file the additional evidence.
38 Mr Godfree gave evidence that he considered that it was not appropriate to file a summons until Orica had been given an opportunity to consider the proposed amendments and the additional evidence in case the parties could reach a position by consent.[17]
39 On 22 July 2025, Gilbert + Tobin informed KWM that Orica would oppose certain amendments and set out detailed reasons. The parties exchanged further correspondence and Aurelius then sought leave to amend on 31 July 2025.
a) this proceeding is in a foreign jurisdiction; and
b) the Australian Consumer Law is an Australian-specific piece of legislation, such that I was not in an informed position to provide substantive comments on the pleading associated with the misleading and deceptive conduct claim.
43 Aurelius has provided an explanation for its delay pre retainer of KWM in April 2025 in seeking to make the claims the subject of the opposed amendments. Aurelius has provided an explanation for this delay but this does not excuse it. It has had an ample opportunity to advance its case. This is a significant factor against the grant of leave.
Is the Completion Accounts Proceedings relevant to this application?
(a) legal set-off of any amount awarded pursuant to the ASOC;
Particulars
SPA, clauses 2.2, 7.4 and 11.8.
(b) alternatively, equitable set-off of any amount awarded pursuant to the ASOC, on the basis that it would be unjust, inequitable and unconscientious on the part of the plaintiff to propound and proceed with its claims against the defendant without having regard to and taking into account the claims asserted by the plaintiff in the Completion Accounts Proceedings.
47 In his second affidavit, Mr Godfree gave evidence that he considers that the expert determination is likely to be issued imminently and that:
48 In its reply submissions Aurelius also submitted:
49 The expert determination has been ready to be handed down since late April 2025, but a dispute arose around the fee payable for the determination. It remains unresolved. Aurelius submitted that it is 'very close to being resolved'. It submitted that any mediation and settlement of this proceeding is 'strictly bound up' with the Completion Accounts Proceedings. But the parties have been aware of the existing trial date in this proceeding since early this year and the contingencies of any commercial uncertainty or further dispute that may arise from the expert determination. In my view, it is irrelevant to whether leave should granted on this application that, if the trial is adjourned as a result, a mediation may be able to convened in an attempt to resolve all matters in this proceeding and the Completion Accounts Proceedings.
50 Orica is likely to incur further costs that could have been, at the very least, substantially reduced, if the opposed amendments were made at the commencement of the proceeding. As a result, I do not accept Aurelius' submission that there would be no wasted costs. I accept that Orica has already incurred very substantial costs in this proceeding.
51 First, I accept that it is likely further discovery will be required of Aurelius. Orica has already said that it will seek such discovery. The nature and extent of any further discovery is not presently known. There is a real risk that there will be wasted costs as a result.
52 While Orica had already proposed an amended defence earlier this year, instructions will have to be taken, and counsel engaged again to draw further amendments to its pleading. Again, there will be wasted costs.
53 I accept that it is likely that Orica will need to put on lay and expert evidence concerning the preparation of the accounts. The same may be true of the 'critical documents' now impugned in the misleading and deceptive conduct claim. There is a risk that this may result in wasted costs. For example, it may be necessary for Orica to re-instruct its experts.
54 A costs order may be made that may address some of the wasted costs. As a result, this is a factor against the grant of leave.
55 Both parties submitted at the hearing that if I grant leave to make the claims in the opposed amendments that the trial will not be able to proceed and will have to be adjourned. This was only conceded by Aurelius at the hearing. The Court then invited both parties at the hearing to address the Court, with more particularity, on the timing of the steps that would need to be taken if leave was granted to make the opposed amendments, so that the Court could determine the length of delay if the trial was adjourned. This is obviously relevant to the exercise of the Court's discretion as to whether to grant leave to make the opposed amendments. Aurelius then provided a draft form of order to the Court and made detailed submissions on it at the hearing. The draft form of order specifically provides for a trial in February 2026. Aurelius submitted that the proceeding may sensibly be ready for trial in February 2026. A trial in February 2026 may be accommodated by the Court. Orica made no submissions on Aurelius' draft form of order or on the precise timing of the interlocutory steps that would be required. It did not submit that the further matters it would need to attend to could not be attended to by February 2026. Orica did not submit that it would not be ready and available for a trial in February 2026. Orica's submissions were confined to the further matters not being able to be attended to by 23 October 2025. I also refer to Mr Oliver's affidavit at paragraphs 57 and 67 to the same effect. I accept the submissions of Aurelius that the trial may be sensibly ready for trial in February 2026.
56 Orica will suffer some prejudice by an adjournment of the trial. It is not a professional litigant and an adjournment will delay the resolution of the claims advanced against it. Orica does not submit that the adjournment of the trial is likely to result in any other particular prejudice. Justice delayed is justice denied. But the Court can accommodate a trial in February 2026, which would constitute an adjournment of about four months from the current trial date.
57 As a result, this is a factor against the grant of leave, but it is not significant.
The inconvenience, uncertainty and strain of litigation
58 In the event that I allow the proposed amendments, the trial will be adjourned. This will cause some inconvenience, be some strain on the parties, including the potential witnesses. This is a prejudice to Orica. But as I have said the Court can accommodate a trial in February 2026. This is a factor against the grant of leave.
59 This trial has been set down for a considerable period of time. In the event that I allow the proposed amendments, the trial will be adjourned. But the Court is likely be able to make use of the allocated time. An adjournment of the trial will not be an intolerable burden. This is a neutral factor.
60 I do not accept that public confidence will be eroded if the trial is adjourned for a second time as the Court can accommodate a trial in February 2026.
61 In my view, after weighing all of the matters I have addressed above, I have come to the firm view that I should grant leave to make the opposed amendments, and, as a result, grant leave to file the additional statements and expert report. This is the course that best serves the interests of justice and is consistent with the maintenance of confidence in the judicial system. This is because Aurelius will be substantially prejudiced if I do not allow the opposed amendments as it will be unable to advance two substantive claims, and the Court can accommodate a trial in February 2026. These factors are not outweighed by Aurelius' inexcusable delay and failures to comply with Court orders prior to April 2025, and the prejudice to Orica of wasted costs and from the adjournment of the trial until February next year.
(a) Aurelius is granted leave to file and serve a second further amended statement of claim in the form exhibited to the affidavit of Mr Godfree made 31 July 2025.
(b) Aurelius is granted leave to file and serve the third witness statements of Benjamin Friedrich Laufer dated 4 July 2025 and of Konrad Martin Meyer dated 3 July 2025 and the supplementary report of Greg Meredith dated 4 July 2025.
63 I will otherwise hear the parties on the issue of costs and other timetabling orders.
[1] Orica opposes amendments set out in paragraphs 20 (chapeau), 20(a1), 26A, 26B, 26C, 27, 28, 28A, 35, and 40 (paragraph (D1) of particulars).
[5] Ibid [75]-[76] (Maxwell P, Kennedy and Walker JJA) (citations omitted).
[7] Ibid [112] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[10] Ibid [40] (Beach and Kaye JJA, Croucher AJA).
[11] [2016] SASC 169; (2016) 126 SASR 307 ('PPG Development').
[13] [2025] FCA 148 ('Murden').
[15] First Godfree Affidavit at [16]-[20].
[16] First Godfree Affidavit at [22]-[23].
[17] Second Godfree Affidavit at [8].
Aurelius Marvel One
Orica Investments [2025] VSC 515
(2016) 126 SASR 307
(2019) 134 SASR 184
(2009) 239 CLR 175