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[2025] VSC 760
General information, not legal advice.
Supreme Court of Victoria
2025-12-04
Connock J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Pleadings - Late application to file a further amended defence and counterclaim - Application for amendment under r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Amendment application general principles - Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 - Multiple previous pleadings and draft pleadings - Application made at end of trial - Civil Procedure Act 2010 (Vic) ss 7, 8 and - Delay - Explanation for delay - Claimed prejudice - Overarching purpose - Application for joinder under rr 9.06 and 10.03 of the (Vic) - Joinder application at conclusion of trial - Joinder application general principles.
1 The trial of this proceeding commenced before me on 23 October 2025 and the evidence concluded on 29 October 2025. Written closing submissions were filed on 6 and 7 November 2025, with reply written closing submissions filed on 11 November 2025 by the plaintiff, and the defendants electing not to file any reply submissions. The final day of trial had been initially set for 6 November 2025, when oral closing submissions were due to be heard. To assist the parties and allow them a little more time to prepare their written closing submissions this date was vacated and oral closing submissions were heard on 17 November 2025. Judgment was, and remains, reserved.
2 By a summons filed 13 November 2025 (Summons) the defendants sought orders to the following effect:
Pursuant to r 36.01 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) (Rules), the defendants have leave to file and serve a second further amended defence and counterclaim (Proposed Second FADCC) substantially in the form exhibited to the affidavit of Dominic Calabro, the defendants' solicitor, sworn 12 November 2025 (Calabro Affidavit).
Pursuant to rr 9.06 and 10.03 of the Rules, Desda Pty Ltd (Desda or Duffy & Simon) be joined to the proceeding as the second defendant by counterclaim.[1]
The further hearing of the trial of the proceeding be adjourned to a date to be fixed.
3 Desda is said to be the corporate entity carrying on the law practice of the plaintiff's solicitor in this proceeding, Duffy & Simon. The Revised Proposed Second FADCC[2] seeks to add Desda as the second defendant by counterclaim and bring a claim against Duffy & Simon for negligence and breach of fiduciary duty (Proposed D&S Claims). The relief sought against Desda is damages, alternatively equitable compensation, and costs. The Revised Proposed Second FADCC also seeks to introduce a claim against the plaintiff that he engaged in misleading or deceptive conduct by failing or refusing to inform the defendants that he was going to register mortgages over certain properties that form part of the subject matter of the proceeding (Properties).
4 The Application was urgently made returnable for directions on the last day of trial, being the scheduled date for oral closing submissions, and at the conclusion of closing submissions directions were made for the further filing of material and for the hearing of the Application on a date that was suitable to the parties. The Application was heard as scheduled on 4 December 2025 (Hearing) as it did not suit the parties to have it heard in the preceding week.
5 On 1 December 2025, shortly before the Hearing date, the defendants provided the plaintiff and the Court with another revised version of the Proposed Second FADCC (Revised Proposed Second FADCC) and stated that the Application would now be pursued in respect of the proposed amendments and joinder reflected in this further revised proposed pleading.
6 I delivered my oral ruling and reasons ex tempore after standing the matter down for a period at the conclusion of the Hearing, and these are my revised written reasons. For the reasons that follow the Application was dismissed.
7 The defendants relied upon the Calabro Affidavit, a written submission filed on 14 November 2025, and the Court Book (CB) from the trial of the proceeding, which was supplemented by oral submissions from counsel at the Hearing. The plaintiff relied upon his written submission filed 17 November 2025 and aspects of the Court Book, which was supplemented by oral submissions from counsel.[3] I had the opportunity to read and consider all of the documentary and written material in advance of the hearing, including the relevant authorities.
8 The background to the proceeding is evident from the pleadings and the parties' respective written outlines of opening submissions and written closing submissions, the revised agreed chronology, and the revised agreed statement of facts, to which I refer but will not set out. The plaintiff's claim is for payment of an alleged substantial debt said to be owed to the plaintiff by the first defendant (GWRM) and guaranteed by its sole director and shareholder, the second defendant (Ben). Although the plaintiff (plaintiff or Robert) and Ben share the same surname, they are not related. Without any disrespect to either party, and to avoid confusion, at times I refer in these reasons to each of the parties by their first name, as occurred through parts of the trial.
9 The events the subject of the proceeding arise in a context that extends back as far as 2012 and 2013, when Robert, who was then not known to Ben, made a $5.7 million loan to GWRM (2013 Loan) facilitated by a finance broker associated with Duffy & Simon's lending practice to enable GWRM to refinance an existing loan made to GWRM by Banksia Securities. The 2013 Loan was secured by the Properties and a further farming property known as 'Devon Downs'. Between 2013 and 2021 a series of further loan agreements and related documents were signed by Robert and Ben, including mortgages and guarantees. The last of the loan transactions is, the plaintiff alleges,[4] recorded in a 2021 loan agreement (2021 Loan Agreement) and related loan and security documents (collectively, 2021 Loan Documents). In part, the loan the subject of the 2021 Loan Agreement (2021 Loan) is said by the plaintiff to record a rollover or extension of previous loans, including some capitalised interest and other amounts. The amount alleged to be outstanding under the 2021 Loan at the time of the issue of the writ was stated to be $7,049,330.80.[5]
10 The defendants deny that they are liable as alleged. Their primary defence, which also forms part of the counterclaim, was first raised in an amended defence and counterclaim filed shortly before the start of the trial. This primary defence is that the 2021 Loan Agreement and the 2021 Loan Documents do not reflect the actual or true agreement between Robert and Ben, and that they were entered into as 'sham agreements'. Briefly, Ben alleges that in 2016 Robert agreed to loan Ben $2,050,000 (Alleged Share Loan) to enable Ben to purchase the shares in GWRM from his sister so as to regain control over the Properties (Alleged Share Loan Agreement), that the Alleged Share Loan would be interest free, and that Ben was not required to repay the Alleged Share Loan until Ben had re-established a business on the Properties that generated sufficient revenue and profit to enable Ben to repay the Alleged Share Loan.[6]
11 Ben alleged that the loan agreement and related documents entered into in 2016 were known to Robert and Ben to be a sham, as were the subsequent loan agreements and related documents, including the 2021 Loan Documents. Ben alleged that they did not reflect the true agreement (being the Alleged Share Loan Agreement), and that the 2021 Loan Documents (and others) were documents that Ben was requested by Robert to sign as a 'formality' so that Robert's sister would not discover how funds forming part of Robert's mother's estate were being used by Robert as the executor of that estate.
12 Further or alternatively the defendants also alleged that Robert was estopped from relying on the 2021 Loan Documents, and, further, that the 2021 Loan Documents should be declared void or unenforceable, be set aside, or be varied, by reason of Robert engaging in misleading or deceptive conduct and Robert engaging in unconscionable conduct, thereby requiring Robert to discharge the mortgages under s 74(5) of the Transfer of Land Act 1958 (Vic) (TLA). These matters are the subject of the defendants' (already extensively amended) further amended defence and counterclaim filed 15 October 2025, which was filed shortly before the trial commenced on 23 October 2025.
13 Robert contests Ben's allegations and, in substance, contends that the 2021 Loan Documents, and previous loan documents, operate or operated in accordance with their terms.
14 Relevantly for present purposes, as part of the series of transactions between Robert, GWRM and Ben, in 2019 GWRM and Ben signed various documents (some on his own behalf and some as the sole director of GWRM), including a loan agreement which, among other things, recorded the rollover of previous loans to GWRM, including some capitalised interest (2019 Loan Agreement). On 19 November 2019, existing mortgages over the Properties in favour of Robert (2013 Mortgages) given by GWRM in connection with the 2013 Loan[7] were discharged and new mortgages in favour of Robert were registered over the Properties (2019 Mortgages) in respect of the amount alleged to have been advanced under the 2019 Loan Agreement. Although the defendants say that the 2019 transaction documents, including the 2019 instrument of mortgage he signed (2019 Mortgage Instrument) are a sham and were signed only as a formality at Robert's request, it is now said that GWRM and Ben were also clients of Duffy & Simon, and that Duffy & Simon breached their fiduciary and other duties owed to Ben and GWRM in connection with the 2019 Mortgages. This is why they now seek to amend the claim and join Duffy & Simon as a defendant to their counterclaim.
15 The history of the proceeding is evident from a review of the court file. Relevant dates include the following:
2013 - 2021 : Various alleged loan transactions between Robert, and GWRM and Ben.[8]
4 July 2024 : Writ and statement of claim filed by the plaintiff.
5 September 2024 : Defence and counterclaim filed by the defendants (Original Defence and Counterclaim).
28 October 2024 : Reply to defence and counterclaim filed by the plaintiff.
28 November 2024 : Reply to defence to counterclaim filed by the defendants.
3 December 2024 : Revised reply to defence to counterclaim filed by the defendants.
11 March 2025 : Proceeding set down for trial on a date not before 8 September 2025.
26 March 2025 : Proceeding set down for trial before Croft J to commence on 9 September 2025, with the matter later transferred to Delany J.
8 September 2025 : Evidence filed about Robert's admission to hospital and the trial was adjourned to commence on 11 September 2025 before Delany J.
11 September 2025 : Due to counsel and judge availability, in addition to Robert's health, the commencement of the trial was adjourned to 23 October 2025. The defendants raised a concern about the discharge and replacement of the 2019 Mortgages. Delany J granted leave to the defendants to file and serve an amended defence and counterclaim in circumstances where there was no draft pleading put forward, but reserving the plaintiff's right to object to its content following its receipt and consideration by the plaintiff.
22 September 2025 : The defendants made extensive amendments to their pleading and filed an amended defence and counterclaim (Amended Defence and Counterclaim), which the plaintiff subsequently objected to.
24 September 2025 : The parties were notified that the trial would be heard before Connock J and not Delany J.
1 October 2025 : A directions hearing before Connock J was held confirming the trial date of 23 October 2025 and setting down oral closing submissions and the last day of trial for 6 November 2025. Directions were also made for the filing of objections to the Amended Defence and Counterclaim and the hearing of any remaining objections on 14 October 2025 by Connock J. Directions were also made for the filing of a revised chronology, agreed statement of facts, and issues lists given the extensive amendments.
15 October 2025 : The defendants filed a further amended defence and counterclaim addressing some aspects of the previous pleading that had been objected to by the plaintiff, with this pleading being the form of the defendants' further amended defence and counterclaim throughout the trial.
22 October 2025 : The plaintiff filed a reply and defence to the further amended defence and counterclaim.
22 October 2025 : The defendants served a proposed second further amended defence and counterclaim, which was ultimately not pursued or pressed by the defendants.
29 October 2025 : The evidence in the trial concluded.
29 October 2025 : Orders were made giving directions for the filing of written closing submissions and adjourning the date for oral submissions from 6 November 2025 to 17 November 2025.
5 November 2025 : The parties attended a mediation before Efthim AsJ, but the matter did not resolve.
6 November 2025 : The plaintiff filed written closing submissions.
7 November 2025 : The defendants filed written closing submissions.
11 November 2025 : The plaintiff filed his written closing submissions in reply.
12 November 2025 : The defendants informed the Court that they would not be filing any written closing submissions in reply.
12 November 2025: The defendants' solicitor sent an email to the Court, copied to the parties, informing the Court that the defendants would be seeking leave to file a second further amended defence and counterclaim and to join Duffy & Simon as a defendant to their counterclaim.
14 November 2025 : The Summons was filed by the defendants together with their written submissions on the Application.
17 November 2025 : The last day of the trial. Oral closing submissions in the trial were heard and further directions were made to facilitate the hearing of the Application on a date suitable to the parties.
17 November 2025 : The plaintiff filed and served his written outline of submissions in relation to the Application.
1 December 2025 : The defendants provided the Revised Proposed Second FADCC to the plaintiff and the Court, being the proposed pleading to be relied on for the purpose of the Application.
4 December 2025 : The Application was heard and determined, with the ruling given orally that day.
16 The defendants stated that they intend to pursue Duffy & Simon for claims of breach of fiduciary duty and breach of duty of care which were said to have resulted in Ben applying his signature to the 2019 Mortgage Instrument. Among other things, it was contended that but for Duffy & Simon failing to make full disclosure to Ben and properly advise him that:
a) the 2013 Mortgages were discharged or to be discharged leaving the Properties unencumbered; and
b) what he was being asked to agree to was a new mortgage over the Properties which had a combined value greater than the amount alleged to be owed by him or GWRM to Robert,
Ben would not have signed the 2019 Mortgage Instrument giving rise to the 2019 Mortgages. It was noted in this context that the 2019 Mortgage Instrument was used to create and register the 2019 Mortgages over the Properties on 19 November 2019 in place of the 2013 Mortgages that were discharged the same day.
17 The defendants submitted that it had emerged during the course of the trial that the plaintiff was relying upon a 'Client Authorisation' for GWRM signed by Ben on behalf of GWRM as its sole director and dated 20 October 2019 (GWRM Client Authorisation), to establish the validity of the 2019 Mortgages. The GWRM Client Authorisation appears to be something of a standard-form client authorisation form used in conveyancing transactions. It records GWRM as the client and bears the signature of Ben as the sole director of GWRM and Bec Luxford, Legal Secretary for Duffy & Simon, as the 'representative'. This document is relied upon by the defendants as the basis for seeking to bring a claim against Duffy & Simon, through Desda, as was addressed in the defendants' written and oral submissions. The defendants submitted that reliance on the GWRM Client Authorisation was not pleaded by the plaintiff and that, if it is effective, then on its terms it caused Duffy & Simon to immediately owe both a fiduciary duty and a duty of care to the defendants. It was said that Duffy & Simon breached those duties by, among other things, failing to make full disclosure, registering the 2019 Mortgages without the authorisation or knowledge of GWRM or Ben, and failing to provide appropriate advice and warnings to GWRM and Ben.
18 The defendants' written submissions summarised the principles relevant to the Court's discretion to allow late pleadings amendments by reference to the principles articulated in Business Service Brokers Pty Ltd v Optus Mobile Pty Ltd (No 3) (Business Service Brokers).[9] Having regard to those considerations, the defendants submitted that the Court should allow the late amendment because, in summary:
The emergence of the GWRM Client Authority, and Robert's evidence during trial that he did not instruct his solicitors to register the 2019 Mortgages, gave rise to the defendants' claims against Duffy & Simon.
It is preferable on case management grounds and consistent with the parties' obligations under the Civil Procedure Act 2010 (Vic) (CPA) for these claims to be brought within the present proceeding. The prospect of further proceedings between the defendants and Duffy & Simon was said to impede bringing the underlying dispute between all parties to a final resolution.
19 Regarding the circumstances leading to the Application and the Proposed Second FADCC, the defendants submitted as follows:
On 22 September 2025, the defendants filed their Amended Defence and Counterclaim which included new allegations that the 2019 Mortgages are void and unenforceable by reason of, among other things, a failure to comply with Participation Rules determined by the Registrar of Titles.
On 13 October 2025, the defendants made a request to the plaintiff's solicitors under s 26 of the CPA for, among other things, 'authorisations to register the 2019 Mortgages' and 'documents relating to any steps taken to verify that Robert Mould had the right to register the 2019 Mortgages'. That request was said to have been made in the context of there being no disclosure of critical documents relating to the electronic conveyancing transactions, notwithstanding the plaintiff's compliance with the Participation Rules being in issue since the defendants filed the Amended Defence and Counterclaim referred to above.
On 16 October 2025, the plaintiff's solicitors disclosed documents in response to the defendants' request, which included the GWRM Client Authorisation.
The plaintiff did not, in his opening submissions at trial, explain how the GWRM Client Authorisation was to be used.
The plaintiff has not produced the file relating to Robert's instructions to Duffy & Simon to prepare the 2019 Loan Agreement and related documents. It was submitted that the upshot of this failure was that the defendants had been limited to piecemeal and incremental disclosure of further mortgage documents over the course of the trial.
At trial, Robert gave evidence that he did not instruct Duffy & Simon to lodge the 2019 Mortgages and that he believed 'it was already all done'. This, so it was said, raised for the first time the fact that Duffy & Simon allegedly lodged the 2019 Mortgages without instructions from Robert.
After Robert's evidence concluded, the plaintiff did not address what was said to be 'the evidentiary void' surrounding the authority to enter into the 2019 Mortgages before closing his case. It was in this context that it was stated that the plaintiff did not call Edwin Hume or Bec Luxford of Duffy & Simon to contradict Robert's evidence about Duffy & Simon acting without instructions, and it was said that there was no contradicting evidence from Ben as he confirmed that neither Robert nor Duffy & Simon ever asked him to grant new mortgages over the Properties. Instead, so the defendants submitted, the plaintiff tendered a new undated mortgage, at CB 1137, which was disclosed to the defendants for the first time on 27 October 2025, and it was stated that the provenance of the document, and the reason for its late disclosure, remained wholly unexplained. That said, the defendants acknowledged that Ben was cross-examined on the GWRM Client Authorisation and accepted that he signed the document as sole director of GWRM.
It was submitted that the plaintiff, midway through the trial, changed his case to rely upon the signed mortgage document (CB 1137). It was noted that the document was not dated and may have been procured by Duffy & Simon after 20 October 2019, at a time when Duffy & Simon owed the defendants fiduciary duties and a duty of care.
It was said that, in written closing submissions, the plaintiff relied on the GWRM Client Authorisation as evidence that Robert had the necessary authority to lodge the 2019 Mortgages. It was stated that Robert's reliance on the GWRM Client Authorisation as the basis for GWRM's consent to enter into and register the 2019 Mortgages had never been pleaded.
20 In connection with the proposed amendments the defendants submitted that if, contrary to their primary position, the GWRM Client Authorisation was found to be effective, three conclusions would follow. First, that Robert and GWRM authorised Duffy & Simon to act on their behalf to cause the 2019 Mortgages to be registered on title. Second, based on the evidence at trial, Robert and Ben did not have any discussion about GWRM granting new mortgages in November 2019. Third, without any evidence from Robert to the contrary, the GWRM Client Authorisation is essential to Robert's assertion that Ben consented to the 2019 Mortgages, which was a consent that Robert on his own evidence said he never sought. With respect to the Proposed D&S Claims, the causes of action were said to arise from the retainer created when, as recorded on the face of the GWRM Client Authorisation, Duffy & Simon were appointed by GWRM to carry out electronic conveyancing transactions.
21 Although Mr Calabro stated in the Calabro Affidavit that the defendants fully acknowledged that disruption to the trial conclusion was undesirable and should be avoided wherever possible, and that the defendants were cognisant of the impact on the Court and the parties, as to why the amendments and joinder should be allowed at this late stage, the defendants further submitted that:
If the Application was not made now, there is a possibility that the defendants could be precluded from raising the introduced causes of action in any future proceedings by reason of the principle recognised in Port of Melbourne Authority v Anshun Pty Ltd (Anshun)[10] that a party will be estopped from relying on a cause of action where that action was not raised in prior proceedings when it could and should have been. It was said that the basis for the claims against Duffy & Simon emerged during the evidence at trial and in the plaintiffs' written closing submissions, and thus the exercise in 'reasonable diligence' required to avoid an Anshun estoppel could arguably require the defendants to bring these claims now rather than in subsequent proceedings. The defendants further submitted that if the Application was not made now they may be met with a plea of estoppel, abuse of process, or a stay which prevents the litigation of the causes of action.
The Proposed D&S Claims, and the underlying findings of fact which will need to be made by the Court about the scope of the retainer and alleged breaches of duty, will bear on key issues in this proceeding.
So long as the plaintiff seeks to enforce the 2019 Mortgages, the overarching obligations under the CPA, including to narrow the issues in dispute and minimise delay, require the defendants to raise these matters now.
A pleadings amendment is a less disruptive and less costly alternative to the commencement of a new proceeding against Duffy & Simon. A new proceeding would require all pre-trial steps to be completed afresh, as well as the calling of Robert and Ben to give evidence on the same topics, at some indeterminate point in the future. The defendants submitted that allowing the Application was the course which would best facilitate the narrowing of all issues in dispute, the reasonableness and proportionality of costs, and the minimisation of delay, consistent with ss 23, 24 and 25 of the CPA.
22 At the Hearing, counsel for the defendants supplemented the defendants' written submissions with oral submissions, which are recorded in the transcript and to which I refer. Without reciting all of the detail, the matters raised included, in substance, the following.
23 It was clarified that reference had intended to be made to rr 36.01 and 9.02 of the Rules in the Summons, although there was no issue about this. So far as joinder was concerned, reference was also made to the decision in Meyer Heine Line Pty Ltd v NM Insurance Pty Ltd (Meyer Heine).[11] The Court was also informed that oral submissions were going to be made regarding three issues, namely the additional claim against Robert, the requirements for joinder, and the overarching purpose under the CPA.
24 Regarding the Proposed 2019 Mortgages Claim, emphasis was placed on the Anshun estoppel risk on the basis that the defendants would be precluded from later making this claim. On a different topic, it was acknowledged that additional evidence would likely be needed in relation to the claim, it was said to be relatively discrete and that this would not mean that the trial held to date will have been a waste of time. It was also contended that pursuing the Proposed 2019 Mortgages Claim at this time will not cause Robert irreparable injury.
25 Upon enquiry from the Bench as to the intended nature of the Proposed 2019 Mortgages Claim, counsel confirmed that it was intended to be a misrepresentation by silence case.
26 With respect to the delay in seeking to bring the Proposed 2019 Mortgages Claim, it was said to be satisfactorily explained because the claim resulted from evidence given by Robert that he did not inform Ben that the 2019 Mortgages were going to be registered.
27 With respect to the joinder of Duffy & Simon, it was submitted that r 9.06 of the Rules was the relevant rule and, in particular, the threshold requirements in r 9.06(b)(ii) were satisfied so as to enliven the Court's residual discretion as to whether or not to order such joinder. In this context it was accepted and acknowledged that the discretionary considerations relevant to the question of joinder were also relevant to the amendment.
28 As had been addressed in the defendants' written submissions, attention was drawn to matters such as: common issues arising if a separate proceeding was commenced; the risk of inconsistent findings; the possibility of an Anshun estoppel being raised if separate proceedings were commenced; the delay being due to the alleged late production of the GWRM Client Authorisation and the mortgage documents; multiplicity of proceedings; and an alleged failure of the plaintiff to discover the GWRM Client Authorisation and mortgage documents, which was contended should have occurred even in connection with the Original Defence and Counterclaim of the defendants. That said, it was also acknowledged that the defendants had the opportunity at any time since the registration of the 2019 Mortgages to seek to obtain copies of such documents as may be available from a title search, and that it was apparent from the title searches in evidence that the 2013 Mortgages had been discharged, and that the 2019 Mortgages had been registered on 19 November 2019. Counsel for the defendants also understandably indicated in this context of timing that it was the GWRM Client Authorisation that was the important document for present purposes.
29 Submissions were also made by reference to the Court's and the parties' obligations under the CPA, with emphasis being placed upon the contention that the Court has to take all of the circumstances into account, including those of both of the parties, submitting that the exercise of the discretions in question involved a balancing exercise involving the weighing of the relevant considerations.
30 In the defendants' oral reply submissions some further matters were raised. It was submitted: that it could not be concluded that the scope of any retainer was limited to the electronic lodgement of conveyancing documents, as was said to be contended for by the plaintiff; that the pleading against Duffy & Simon was sufficient for present purposes; and that the pleading did not need to outline or allege the nature of the retainer. It was said further that the duties arose by reason of the existence of the GWRM Client Authorisation, which gave rise to fiduciary duties and the duty of care owed to GWRM and Ben in respect of the 2019 Mortgages.
31 In connection with the delay in bringing forward the claims against Duffy & Simon, it was submitted that the ability to ask Ben about the GWRM Client Authorisation was, in effect, unrealistic because his evidence showed that his recollection regarding the document was very limited even though he accepted that it was signed by him.
32 As to the period between the time the defendants received the GWRM Client Authorisation on 16 October 2025 and the commencement of the trial, it was submitted that this was explained because the Revised Proposed Second FADCC included allegations associated with evidence given by Robert during the trial. Whilst it was acknowledged that it would have been open to seek to bring forward a claim against Duffy & Simon on the basis of the GWRM Client Authorisation without such evidence, it was submitted in exchanges with the Bench that such a claim would have been more narrow in its scope so far as the conflict of interest and related allegations were concerned.
33 The plaintiff's written submissions similarly summarised the principles relevant to the Court's discretion to allow late pleading amendments by reference to the principles articulated in Business Service Brokers,[12] and also by drawing attention to the observations of Vickery J in Namberry Craft Pty Ltd v Watson.[13] As to the principles in relation to joinder, the plaintiff referred to the observations of Elliott J in S Pirrie Equities Pty Ltd v Venetian Media Group Pty Ltd (S Pirrie Equities).[14]
34 In contending that the defendants failed to establish that the Court should exercise its discretion to allow the proposed amendments and joinder, the plaintiff submitted, in summary, as follows.
35 The Application was said to have been brought extremely late in the life of this proceeding, with no satisfactory explanation for the delay, and where the defendants could have raised the matters now complained of earlier had they properly investigated the issues relating to the registration of the 2019 Mortgages. Further, it was observed that the defendants had already significantly amended their defence and counterclaim following the adjournment of the trial date initially listed in September 2025, noting that one of these proposed amended pleadings was abandoned after the conclusion of the first day of trial.
36 The plaintiff submitted that whilst the defendants had attempted to blame the plaintiff for not having provided the GWRM Client Authorisation at an earlier time, casting such blame was erroneous because:
The registration process for the 2019 Mortgages was first put in issue in the Amended Defence and Counterclaim dated 19 September 2025, which claimed that the plaintiff's solicitors had failed to take steps to verify that Robert had the right to enter into the 2019 Mortgages and had failed to discover a client authorisation form for Robert (as opposed to GWRM or Ben). The Amended Defence and Counterclaim was subject to objections by the plaintiff, which were not resolved until orders were made on 14 October 2025. The first mention of the GWRM Client Authorisation appears in the proposed second further amended defence and counterclaim provided on 22 October 2025, which was not pressed and was elected to be withdrawn by the defendants.
The defendants seek to rely on the GWRM Client Authorisation executed by their own client, and the simplest way to establish what involvement Ben or GWRM had in the lodging of the 2019 Mortgages would have been to ask Ben.
Any alleged failure of the plaintiff to respond to calls for documents was misconceived, and the GWRM Client Authorisation was provided in a timely way in any event.
The claims the subject of the proposed amendments did not arise during oral evidence or through the plaintiff's written submissions. Although it was said that the defendants seek to point to oral evidence from Robert that he did not instruct Duffy & Simon to lodge the 2019 Mortgages, the proposed new claims are not based on any evidence to the effect that Duffy & Simon lodged the 2019 Mortgages without Robert's instructions. Further, the plaintiff relied on the GWRM Client Authorisation as another example of the defendants executing documents which establish the transactions contended for by the plaintiff. It was said that it is not necessary for the plaintiff to rely on the document in order to make his case, and said that it has not been pleaded in his statement of claim because it is not a document fundamental to the plaintiff's case.
The proposed pleading that Robert engaged in misleading or deceptive conduct by failing or refusing to inform Ben that he would register the 2019 Mortgages is not based on the GWRM Client Authorisation and there is no reason why it could not have been raised earlier.
37 The plaintiff submitted that he would suffer unfair prejudice if the amendment and joinder were allowed because: this proceeding will be delayed for months; the costs of allowing the amendment will be significant; and Robert will be required to engage new solicitors, causing increased cost and expense in this trial which will not be less disruptive or costly than commencing new proceedings separately against Duffy & Simon. The plaintiff further submitted that if the joinder was allowed the plaintiff will have to consider making a claim of contribution against Duffy & Simon. It was also said that the 2019 Mortgages were lodged on 19 November 2019, meaning that a potential six-year limitation period may have expired on 18 November 2025, and there is no award of costs that could assuage that prejudice.
38 It was contended that it is consistent with sound case management principles for the Application to be dismissed. It was submitted that the proposed amendment and joinder comes at an extremely late stage, with evidence having closed, the parties having completed written closing submissions, and (at the time of filing the Summons) oral closing submissions to be heard on 17 November 2025. Any further trial or hearing was said to be at least months away, and it was submitted that, when preparing reasons for judgment, the Court will be obliged to turn its mind to oral evidence given in the substantive case months previously.
39 The plaintiff submitted that the defendants' claim that they will be precluded from subsequently bringing a claim against Duffy & Simon due to the principles of Anshun estoppel was unfounded, noting that Desda is not a party to the proceeding and nor, on the current pleadings, was the Court being asked to form an opinion or pronounce judgment on any breach of duty owed by Duffy & Simon to GWRM or Ben.
40 As to the issue of public confidence in the judicial system, it was submitted that such confidence will be diminished by allowing the amendments because an independent observer would rightly question why the defendants should be permitted to run their defence in such a piecemeal fashion. The plaintiff noted that issues regarding the registration of the 2019 Mortgages were first raised by the defendants on the day the matter was initially listed for trial, 11 September 2025, and that the defendants were supplied with the documents relating to that registration, including the GWRM Client Authorisation, by mid-October. It was further observed that, one day prior to the trial commencing, the defendants proposed, and then withdrew, an amendment relying upon the GWRM Client Authorisation, and that it was only when reply written closing submissions were due did the defendants bring forward the Application. It was contended that allowing the defendants to continually raise new ways to put their case at such a late juncture would result in the lessening of public confidence in the administration of justice.
41 The plaintiff also submitted that the amendments are futile, and that there are no real prospects that the allegations against Duffy & Simon will succeed because: the 2019 Loan Agreement and the 2019 Mortgages were executed by Ben months before the GWRM Client Authorisation was signed, and any conflict of interest therefore cannot invalidate the 2019 Mortgages; the defendants make no attempt to set out the basis or scope of GWRM's alleged retainer of Duffy & Simon; if there was any retainer (which is denied) it would have been limited to the lodging of the 2019 Mortgages and, because both mortgagee and mortgagor sought the lodging of the documents, there was no conflict; and the proposed allegations against Duffy & Simon are partly premised on the firm having knowledge of an alleged agreement between Robert and Ben, and Ben did not give any evidence to this effect, and any discussions between Duffy & Simon and Robert would be privileged.
42 At the Hearing counsel for the plaintiff relied upon the plaintiff's written submissions and made some additional oral submissions, the detail of which is evident from the transcript, to which I refer. Briefly, the matters raised included, in substance, the following.
43 The plaintiff placed emphasis upon the overarching purpose under the CPA and his submissions as to why that purpose would not be well served by allowing the Application.
44 With respect to the Proposed 2019 Mortgages Claim against Robert, it was submitted that the claim effectively 'goes nowhere', with emphasis placed upon the delay in bringing it forward and the absence of any satisfactory explanation for so doing.
45 As to the production of the GWRM Client Authorisation and the mortgage documentation, it was submitted that there was no substance to the contention that, on the pleadings, these documents were required to be provided earlier, with counsel also confirming that there were no discovery orders made in the proceeding, and that the only 'discovery' obligation was the obligation to provide critical documents.[15]
46 Reference was made to the Proposed D&S Claims, and submissions were made about their futility given that it was said that, even if it is assumed that a solicitor‑client relationship could have existed, the retainer could not extend beyond the authority to lodge documents electronically in conveyancing transactions. This was said to be supported by the terms of the GWRM Client Authorisation. It was further emphasised that it was open to the defendants to commence a proceeding against Duffy & Simon at any time.
(1) For the purpose of -
(a) determining the real question in controversy between the parties to any proceeding; or
(b) correcting any defect or error in any proceeding; or
(c) avoiding multiplicity of proceedings -
the Court may, at any stage order that any document[16] in the proceeding be amended or that any party have leave to amend any document in the proceeding.
48 The general principles regarding applications for leave to amend pleadings in civil litigation were addressed in Business Service Brokers,[17] which was recently cited with approval by the Court of Appeal in Dawn v Carlisle Homes Pty Ltd.[18] The relevant part of the reasons in Business Service Brokers is repeated in part below in largely identical terms.
49 The general principles relating to the grant or refusal of leave to amend pleadings are well known. They were succinctly referred to by Elliott J in Cargill Australia Limited v Viterra Malt Pty Ltd (No 18) as follows:[19]
[31] The principles relating to the granting or refusal of leave to amend pleadings are well established.[20] Rule 36.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) empowers the court to grant leave to any party to amend any document for the purpose of "determining the real question in controversy between the parties to any proceeding". Leave may be granted at any stage of the proceeding.
[32] In deciding whether to grant leave to a party to amend its pleadings, the court must consider whether the proposed amendments facilitate the identification of the real issues in dispute and the just resolution of the proceeding.[21]
[33] The power to grant leave to a party to amend its pleading to raise an arguable issue is a discretionary power. There is no right or entitlement for a party to amend its pleading subject to the payment of costs referable to the amendment.[22] The nature and importance of the proposed amendments must be considered.[23] This factor must be weighed against case management considerations such as cost, delay and the potential for unfair prejudice to other parties to the proceeding, the court and other litigants that might arise if the proposed amendments are allowed.[24]
[34] Further, in exercising the power to grant leave, the court may give any direction or impose any term or condition it thinks fit.[25]
50 A helpful summary was also set out in ABL Nominees Pty Ltd v MacKenzie (No 2):[26]
[17] The power to amend in r 36.01 (1) of the Supreme Court (General Civil Procedure) Rules 2005 (Rules) authorises the court to order that a party have leave to amend any pleading for the purpose of determining the real question in controversy between the parties to any proceeding, correcting any defect or error or avoiding multiplicity of proceedings.
[18] It is common ground that an amendment which is futile because it is obviously bad in law will not be allowed: Commonwealth v Verwayen.[27] Similarly, if a proposed pleading would be liable to be struck out if it had been contained in an original pleading, either because the pleading is bad in law or is defective as a pleading, then leave to file the proposed pleading will not be allowed: Horton v Jones (No.2);[28] Gimson v Victorian WorkCover Authority.[29] The court, on this type of application, will not engage in an examination of the merits of the case foreshadowed by the proposed amendment, but where that amendment introduces a patently hopeless issue for determination then its inclusion will be futile and that will be a significant, and probably decisive, matter in the exercise of the court's discretion.[30]
[19] As J Forrest J observed in Matthews v SPI Electricity Pty Ltd (Ruling No 6),[31] having regard to the terms of the Civil Procedure Act 2010 (CPA), the test is best expressed in the words of s 63 of that Act: if the amendment has no real prospect of success at trial then that would be a highly relevant factor in the exercise of the discretion to refuse the application.[32]
[20] In Namberry Craft Pty Ltd v Watson,[33] Vickery J summarised the relevant factors to be considered, as a result of the decision in AON Risk Services Australia v Australian National University,[34] as follows:
[T]here are to be limits placed upon re-pleading. The High Court in AON Risk Services Australia referred to a range of other considerations which need to be weighed in the balance in the exercise of the discretion to grant an amendment to a pleading. The High Court made reference to the following factors:
(a) Whether there will be substantial delay caused by the amendment;
(b) The extent of wasted costs that will be incurred;
(c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;
(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;
(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and
(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.[35]
[21] This list of factors is not exhaustive. It is made against the background of the earlier decision of the High Court in Queensland v JL Holdings Pty Ltd,[36] and the authorities that preceded it, including the famous case of Cropper v Smith,[37] where the liberal approach to the amendment of pleadings finds its lead in the dissenting judgment of Bowen LJ.
[22] On the other hand, pleadings are not an end in themselves. They are a means of ensuring that real issues of controversy are raised for determination in a way that is procedurally fair, both to a plaintiff and a defendant. This allows claims and defences to be clearly articulated, granting parties an opportunity to present their case properly prepared, on clear notice of allegations and defences raised in the proceedings. On this basis, the authorities clearly establish that, absent extraordinary circumstances, leave to amend will be granted.[38]
51 In Ultra Thoroughbred Racing Pty Ltd t/as Baree Stud v Those Certain Underwriters at Lloyd's (Ultra Thoroughbred),[39] J Forrest J observed that, following the High Court's decision in Aon Risk Services Australia Ltd v Australian National University (Aon),[40] courts must consider: the wider public interest and the efficient use of limited court resources when deciding whether to grant applications to amend pleadings; that parties will not be permitted to raise any arguable case in any stage of proceedings subject only to payment of costs; and that amendments that produce delay impact on the entire court system and affect parties desirous of utilising that particular court system. As his Honour noted, in Aon, the High Court said as follows:[41]
An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases...
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 the parties having a sufficient opportunity to identify the issues they seek to agitate.
In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
It has been said by this Court that Aon may have 'reinvigorated the procedural paradigm' insofar as time, costs and limited judicial resources are relevant considerations in the determination of whether to allow certain interlocutory processes.[44] However, as J Forrest J observed in Ultra, 'the primary question still remains: what do the interests of justice dictate?'; Aon reminds courts that 'the prism through which these interests are viewed is wider than just that of the moving party'.[45]
53 The Court must have regard to the relevant provisions of the CPA when addressing case management matters, including applications for leave to amend. This was emphasised by Kyrou and McLeish JJA in Northern Health, where the CPA was described as '... pivotal to the resolution of disputes about case management issues in civil proceedings to which the Act applies ...', and it was stressed that '... it is important that ... trial judges engage with the Act's provisions in balancing the competing interests of the parties and those of the administration of justice more generally.'[46]
54 Their Honours were also swift to recognise that procedural rulings must often be made promptly with succinct reasons, noting that engaging with the provisions of the CPA '... does not mean that trial judges must set out each applicable provision of the Act and state reasons in relation to it ... [but that] it must be apparent from the reasons for the ruling - either expressly or inferentially - that the judge took into account the applicable provisions.'[47]
55 Subsequent to my decision in Business Service Brokers, the Court of Appeal summarised the principles to be applied in determining whether to permit an amendment to an existing defence in Baptcare Ltd v Ingpen,[48] to which I refer but will not set out.
56 As indicated above, the timing of an application to amend pleadings, and the impact that has on considerations of public interest and prejudice, is relevant to whether leave ought to be granted. An issue to which consideration must be directed is whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought, and the circumstances giving rise to the proposed amendment so that they may be weighed against the effects of any delay and the objectives of the Rules.[49] In many cases the court has refused to grant leave largely on the basis that no adequate explanation was provided for a significant delay in bringing the application, although each case of course depends on its own facts.[50]
57 Rules 9.06, 10.03, and 9.02 of the Rules relevantly provide as follows:
9.06 Addition, removal, substitution of party
At any stage of a proceeding the Court may order that -
(a) any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party;
(b) any of the following persons be added as a party -
(i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or
(ii) a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;
(c) a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies.
10.03 Counterclaim against plaintiff and another person
A defendant may join with the plaintiff as defendant to the counterclaim any other person, whether a party to the proceeding or not, who, if the defendant were to bring a separate proceeding, could be properly joined with the plaintiff as a party in accordance with Rule 9.02.
9.02 Permissive joinder of parties
Two or more persons may be joined as plaintiffs or defendants in any proceeding -
(a) where -
(i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; or
(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or
(b) where the Court, before or after the joinder, gives leave to do so.
58 In S Pirrie Equities, Elliott J addressed a number of principles and observations regarding the terms and operation of r 9.06 of the Rules, which is convenient and efficient to repeat:[51]
[77] Where a proceeding has already been commenced, a party must seek leave of the court to add a party under rule 9.06 of the Rules. Rule 9.06 aims to enhance the efficient and economic resolution of proceedings,[52] including by preventing multiplicity of actions and enabling a court to determine disputes between all parties in a single proceeding, so as to avoid the same or substantially the same questions or issues being tried twice.[53] Accordingly, rule 9.06 should not be given a narrow construction which would exclude from its operation any particular class of cases.[54]
[78] Rule 9.06(b) sets out 2 alternative tests for when a party may be joined to a proceeding:
9.06 Addition, removal, substitution of party
At any stage of a proceeding the Court may order that -
...
(b) any of the following persons be added as a party -
(i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or
(ii) a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;
...
[79] Under either limb of rule 9.06(b), ordinarily the merits or prospects of the claim sought to be brought against a party are not relevant to the question of whether they ought to be joined.[55] However, where the claims made against a party that is proposed to be joined under rule 9.06(b) are "obviously bad in law or futile"[56] or have "no real prospects of success",[57] the application will usually be refused.
[80] The first test, which is contained in rule 9.06(b)(i), is narrow and contains within itself 2 alternative limbs:
(1) "A person who ought to have been joined as a party". Under this limb, the party seeking to join a party must prove that their presence is required to enable the proceeding to continue. This limb is comparable to the requirements for joinder of necessary parties under rule 9.03 of the Rules if the plaintiff does not join the person as a party, the court will, on objection by the defendant, stay the proceeding until this is done.[58]
(2) "A person ... whose presence before the Court is necessary". This limb authorises the court to add as a party a person who could have been joined originally (in accordance with rule 9.02 of the Rules).[59] The person need not be necessary in the sense that the court will not allow the proceeding to continue unless the person is made a party, rather, they need only be necessary in that their presence will aid in achieving finality and avoiding a multiplicity of proceedings.[60]
[81] In relation to the second limb of rule 9.06(b)(i), the Privy Council has provided further clarity on when it will be "necessary" to join a party to help achieve finality and avoid multiplicity of proceedings in the context of the equivalent English provisions. As articulated by Lord Diplock in Pegang Mining Co Ltd v Choong Sam (No 1):[61]
A better way of expressing the test is: will [the person's] rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?
[82] This test was approved and further clarified by the Full Federal Court in News Ltd v Australian Rugby Football League Ltd as follows:[62]
The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party's rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent. ... The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential.
It is plain that [rule 9.06(b)(ii)] is to have a wide construction. That can be deduced from its words and from the circumstances in which the rule was introduced.
[84] An applicant who seeks to invoke the court's jurisdiction under rule 9.06(b)(ii) must prove that:[65]
(i) there are two entities namely the person to be added as a party and a party to the proceedings;
(ii) between the two entities there may exist a question arising out of or relating to or connected with any claim in the proceeding;
(iii) it is just and convenient to determine that question between the proposed party and the other party as well as between the parties to the proceeding.
[85] However, even if the above elements are established, the court retains a discretion as to whether or not to make an order under rule 9.06(b)(ii).[66]
[86] In relation to the requirement that there be a question arising out of, relating to or connected with a claim in the proceeding between a party to the proceeding and the entity to be joined, the Rules define "question" as:[67]
... any question, issue or matter for determination by the Court, whether of fact or law or of fact and law, raised by the pleadings or otherwise at any stage of a proceeding by the Court, by any party or by any person not a party who has a sufficient interest.
[87] It is not necessary that the "question" amount to a cause of action; rather, there need only be "a justiciable controversy" between a party to the proceeding and the entity that is sought to be joined.[68]
[88] Nor is it necessary that the question between the proposed additional party and the party applying for its addition already exist between the original parties to the proceeding. It has been recognised that such a construction would "undesirably fetter the operation" of rule 9.06(b)(ii).[69] As is evident from the language of the rule itself, it is sufficient that the question "aris[es] out of", "relat[es] to" or is "connected with" any claim in the proceeding.[70]
59 In Boral Resources (Vic) Pty Ltd v Robak Engineering & Construction Pty Ltd,[71] Tadgell JA emphasised that a 'cardinal object' of r 9.06 of the Rules was the avoidance of multiplicity of proceedings, noting later in his reasons that the court also needs to be satisfied that there is substance to the contention that 'there may exist a question' as required in r 9.06(b)(ii).[72] Reference to the cardinal object referred to by Tadgell JA was also underscored by Elliott J in Ubertini v Saeco International Group SpA (No 6).[73]
60 As is evident from the above, by the Application the defendants seek to bring new claims against a non-party, being the plaintiff's solicitors, for breaching fiduciary duties and a duty of care alleged to have been owed by Duffy & Simon to each of GWRM and Ben. They also seek to introduce an additional misleading conduct claim against Robert regarding the 2019 Mortgages (Proposed 2019 Mortgages Claim).[74]
61 Having considered the material and submissions relied upon, taken into account and applied the terms of the relevant Rules and applicable principles, considered and engaged with the Court's obligations under the CPA,[75] and having weighed the relevant considerations in the context of the circumstances before me, I have concluded that the Application should be refused. I elaborate below as to why the Court's discretion should be exercised against allowing any of the amendments or the joinder of Duffy & Simon at this late stage of the proceeding.
62 Putting to one side for the moment the Proposed 2019 Mortgages Claim amendment, it is apparent from the proposed pleading, the evidence, and the submissions, that the amendments are otherwise linked to the Proposed D&S Claims which, if allowed, would also necessitate the joinder of Duffy & Simon. As the parties essentially did in their submissions and in the conduct of the Application, I proceed for present purposes on the assumption that, as was submitted by the defendants and not challenged by the plaintiff, the Court's discretionary power to permit the amendments and joinder under the relevant Rules is enlivened. Consequently, and again as the parties did, I turn immediately to the exercise of the Court's discretion in the circumstances of this case. In so doing I recognise, again as the parties did, that the discretionary considerations largely overlap in relation to the amendment and joinder questions.
63 In that which follows I first deal with that which received most of the attention, being the amendments and joinder in respect of the Proposed D&S Claims, and I then turn to the Proposed 2019 Mortgages Claim amendment.
64 Given the history and circumstances in this case, I do not accept the defendants' contention that the case management, timing, prejudice, explanation, CPA and multiplicity considerations, and/or the other considerations and matters raised, in any combination, weigh in favour of allowing the Application. All things considered, the relevant considerations weigh against the Application, and in my view, materially so. In this context I make the following further observations.[76]
65 First, it is apparent that the Application was foreshadowed and made extremely late in the history of the proceeding when the trial had essentially been concluded, as can be seen from the affidavit material and the timeline set out earlier in these reasons (Procedural Timeline). For example: the pleadings, the opening and closing submissions, and the evidence, traverse events from as far back as at least 2013; the proceeding was commenced on 4 July 2024; the proceeding has been subject to judicial management and various procedural orders have been made since its commencement in the Commercial Court; the evidence in the trial has been heard and concluded; written closing submissions have been filed; and oral closing submissions have now been heard.[77] It may also be noted that it was as early as 26 March 2025 that the parties were notified that the trial was to commence on 9 September 2025, which later became 23 October 2025 as noted in the Procedural Timeline.
66 Second, contrary to aspects of the submissions of the defendants, I do not accept that the responsibility for the lateness of the defendants' Application falls at the feet of the plaintiff in the manner contended for by the defendants. At best for the defendants, it is essentially as a result of the defendants' own conduct in connection with the proceeding, including the very late and material amendments they made to their defence and counterclaim shortly before the trial. I elaborate further on this aspect in paragraphs 90 to 101 below to better expose why I have concluded that the defendants' explanation for the delay is less than satisfactory or persuasive.
67 Third, the Proposed D&S Claims are against the plaintiff's solicitors. These solicitors have acted for Robert throughout this proceeding since it was commenced, and earlier. If the Application was allowed at this late stage and Duffy & Simon were joined to this proceeding it appears inevitable, or at least extremely likely, that they would not be in a position to continue to act for Robert in the ongoing proceeding. Self‑evidently, this would necessitate the briefing of new solicitors by Robert, consequent additional expense and delay, and impose additional preparation, time, and stress burdens upon Robert as a result.
68 Fourth, if the Application were to be allowed, and notwithstanding that the trial has concluded, many further steps would be required to be undertaken in this proceeding, and the resumption of the trial, and the ultimate conclusion of this proceeding, would very likely be further materially delayed.
69 Given that this would be a new claim in a proceeding in which Duffy & Simon have never been a defendant to a claim to date, the steps that may be involved include the following: service of the counterclaim on Duffy & Simon; Duffy & Simon engaging with relevant insurers; Duffy & Simon obtaining representation, whether through insurers or otherwise; Duffy & Simon considering any pleading or other challenges to be made; Duffy & Simon giving instructions to their legal advisers; counsel being briefed to draft pleadings; consideration of whether Duffy & Simon have any counterclaim against GWRM or Ben; Duffy & Simon giving consideration to the position of the three different firms of solicitors that acted for and advised Ben and/or GWRM at relevant times in connection with transaction documents and obtaining advice as to whether they or any other person should be joined; further pleadings by the defendants; consideration by the plaintiff of many issues and steps, including pleadings, evidence, and submissions; the potential for cross-claims; attending directions hearings and obtaining orders for relevant pre-trial steps; the making of a reopening application by the defendants; potentially the making of a reopening application by the plaintiff; preparation of outlines of evidence for relevant witnesses that Duffy & Simon may wish to call; consideration of the extent to which expert evidence is required regarding, for example: valuation, relevant conveyancing or other practice regarding loans and mortgages, and electronic conveyancing transactions; the gathering and exchange of (at least) critical documents; preparation of further Court Book material; preparation of trial plans and estimates; the fixing of dates for the further hearing of the trial; mediation and preparation for the same; preparation of revised outlines of opening submissions by the defendants; preparation of opening submissions by Duffy & Simon; preparation for trial by solicitors and counsel for all parties; a further hearing of the balance of the trial of the proceeding; preparation of revised written closing submissions; and the hearing of oral closing submissions. Further, if any issues arise between Duffy & Simon and any relevant insurer, further delay, expense and/or complexity may follow.
70 Fifth, whilst I accept that the trial was run efficiently and most, if not all of it, will not be wasted if the Application is allowed, it is plain that there would be considerable further delay before this proceeding would be in a position for the trial to resume. Additional timing difficulties may be encountered given that it will be highly desirable, if not necessary, for the trial to proceed before the same trial judge. Given current existing court commitments in 2026, this may generate material challenges for the trial to resume in 2026, even assuming that the parties were in a position to be ready for trial in (say) the second half of 2026.
71 Sixth, if the Application was allowed, the trial was resumed, and judgment was then reserved subsequent to the resumption of the trial, it would be necessary for the trial judge to be revisiting evidence given materially earlier in time when determining the issues and preparing reasons for judgment.[78]
72 Seventh, if the Application is not successful, the defendants will be in a position to issue a fresh proceeding against Duffy & Simon without delay if they wish. Indeed, the Court was informed by senior counsel for the defendants when making directions about the Application on 17 November 2025, on the last day of the trial, that a proceeding was going to be filed and served against Duffy & Simon prior to 19 November 2025 in order to address a limitation of actions concern, although at the Hearing counsel for the defendants informed the Court that this did not occur.
73 Eighth, if the Application was allowed, the delivery of judgment on the plaintiff's claim, and the defendants' counterclaim against the plaintiff, would likely not occur until a number of months after the conclusion of the end of any later resumed trial in this proceeding.
74 Ninth, if the Application is refused and, instead, a separate proceeding against Duffy & Simon is commenced, it is at least highly likely that judgment will have been delivered in respect of the claim and counterclaim in this proceeding before any separate proceeding against Duffy & Simon comes to trial, meaning that the result will be known, and thereby better inform Duffy & Simon and the defendants of their position vis‑à‑vis each other.
75 Tenth, it was not suggested that if a separate proceeding was to be brought by the defendants against Duffy & Simon that Robert would be a necessary or proper party. Indeed, on the material before me it is difficult to see why that would be so. It may also be noted in this context that the Proposed D&S Claims are monetary claims only for damages or equitable compensation.[79] Although I accept that Ben would likely, if not inevitably, have to give evidence in a separate proceeding, he would also have to give further evidence if the Proposed D&S Claims were pursued in this proceeding, as was intimated during the defendants' oral submissions at the Hearing. Whilst it may be that Robert is asked to or is subpoenaed to give evidence in any later proceeding, that remains to be seen. In any event, even if Robert and Ben were to give evidence in a later proceeding against Duffy & Simon, this does not weigh heavily in the balance given all the other considerations.
76 Eleventh, Robert and Ben have been in dispute for a lengthy period to date, and been involved in this litigation for an extended period. If the Application were to be allowed this period would be materially expanded. However, if Robert and the defendants' claims and counterclaims proceed to judgment there is at least a reasonable to high likelihood that the litigation between these parties will be at an end.[80] It may also be noted in this context that Robert and Ben are individuals and not corporate entities, and also that Robert is of advanced years, appears to have some health challenges, and already has limited memory regarding some aspects of past events.
77 Twelfth, if the defendants had wanted to explore the circumstances associated with the execution and registration of the 2019 Mortgages earlier, including the role of Duffy & Simon, they had the opportunity to do so and could have done so at any time subsequent to their registration. The discharge of the 2013 Mortgages and registration of the 2019 Mortgages is apparent from the title searches of the Properties, which could have been carried out and/or further explored at any time subsequent to the discharge and registration of the said mortgages, and a copy of such documents as are available from such searches obtained, as was appropriately acknowledged by counsel for each of the parties at the Hearing.
78 It may be observed in this context that, contrary to the stance belatedly taken by the defendants in the proceeding, until shortly before trial the defendants' position, including as pleaded in their Original Defence and Counterclaim, was that they admitted and acknowledged the registration of relevant mortgages, including the 2019 Mortgages.
79 To the extent that it was contended that the plaintiff was under an obligation to discover or produce the GWRM Client Authorisation on the original pleadings, I do not accept that contention. I again note for completeness that, in any event, and as is common in Commercial Court proceedings, no discovery orders were made. To the extent that the defendants pressed the contention that, in any event, the parties were bound to give discovery by reason of the operation of the Rules, that submission is without merit.[81]
80 Thirteenth, the defendants' submission regarding it being possible that the defendants may be met with an Anshun estoppel plea by Duffy & Simon is of limited weight in the circumstances. Having regard to the applicable principles regarding Anshun estoppel,[82] the risk of such an issue causing real prejudice to the defendants vis‑à‑vis Duffy & Simon in the manner raised appears on the material before me to be limited.[83] In any event, even if an Anshun estoppel risk of the kind or calibre referred to by the defendants is assumed to exist, when considered and weighed with all the circumstances no different result should follow. Such risk as there is arises by virtue of the defendants' delayed conduct in seeking to explore or bring forward their claims prior to this time.
81 Fourteenth, the Calabro Affidavit stated that there were two specific forms of prejudice to the defendants. One was in respect of an alleged potential six-year limitation period. This was addressed by senior counsel at the hearing on 17 November 2025, when the Court was informed that a proceeding would, or would likely, be issued against Duffy & Simon prior to 19 November 2025 to preserve the position. Although it was not submitted that this is now a new risk of prejudice, if it had been, the submission would be without substance given the apparent ability to ameliorate the said risk and the defendants' decision not to do so. The second form of prejudice if the claims against Duffy & Simon were not brought within this proceeding was said by Mr Calabro to be that the defendants may be precluded from bringing the claims in any separate proceeding by reason of an Anshun estoppel argument. I have addressed this aspect above, to which I refer.
82 Fifteenth, although I take into account that if a separate proceeding is brought against Duffy & Simon there may be a level of relevant overlap with some of the facts or issues raised and addressed in the trial in this proceeding,[84] in all of the circumstances this factor does not, whether alone or together with any other circumstances, weigh sufficiently heavily in the balance for the defendants' Application given the other considerations. Further, the extent of any relevant overlap as may exist is not as substantial or significant as the defendants appeared to suggest; but even if it was, in all the circumstances it would not alter my conclusion as to how, having regard to all the relevant considerations and circumstances, the Court's discretion in relation to the amendment and joinder issues should be exercised.
83 Sixteenth, given all of the matters referred to above, in my view the defendants' multiplicity of proceedings contention, although relevant, also does not weigh materially in the balance in favour of the Application, whether considered alone or with any other circumstances. In addition to the matters referred to in the preceding paragraph and earlier above, in a practical sense, and in a court resources sense, the likely steps to occur reveal that allowing the Application would, in substance, involve 'tacking on' what is essentially a new proceeding to this proceeding - and notwithstanding that the trial of this proceeding was largely concluded by the time the Application was foreshadowed and made.
84 For similar reasons, in the circumstances I am not persuaded by the submission that allowing the joinder and amendment can be seen to be in any meaningful way a less disruptive and less costly alternative to the commencement of a new proceeding against Duffy & Simon taking into account, for example, the matters earlier mentioned.
85 Seventeenth, to the extent that it was submitted that allowing the Application would best facilitate the narrowing of issues in dispute, the reasonableness and proportionality of costs, and the minimisation of delay, consistent with ss 23, 24 and 25 of the CPA, I do not accept that submission in the circumstances. Seeking to pursue the Proposed D&S Claims against Duffy & Simon in this proceeding self-evidently broadens the issues in dispute, and it can be seen that material additional costs and delay will be involved in this proceeding in the event that the Application was allowed. In any event, even if the defendants were correct in this contention, when weighed in the balance, it remains clear that the Application should be refused.
86 Eighteenth, to the extent that the defendants sought to seek support from the existence of a notice to produce the entire file of Duffy & Simon, this is of no relevant assistance to the defendants for present purposes. On the first day of trial counsel for the plaintiff indicated that he would apply to set aside the notice to produce, but this became unnecessary as it was not ultimately called upon by the defendants.
87 Nineteenth, there is also no relevant force for present purposes in the evidence of Mr Calabro about requesting in email correspondence a copy of the original of the GWRM Client Authorisation. Although it appears that the original was not provided, no notice to produce or call was made for it during the trial. In any event, even if there had been, and the original had not been produced, given that the parties had a copy of the document from the date and time previously indicated, the production of the original could not be seen to have made any relevant difference for the purposes of the determination of this Application.
88 Twentieth, I accept the plaintiff's contention that the administration of justice, including in the sense addressed in Aon, is best served by refusing the Application, including in relation to the Proposed 2019 Mortgages Claim.
89 Finally, it is to be emphasised that no different result would have followed if the Application had been heard on or shortly before 17 November 2025, being the day scheduled for closing submissions. In reality that would still have been essentially at the end of the trial, and the considerations would have remained the same. Proceeding with closing submissions and not losing that court time was also consistent with the Court's and parties' obligations under the CPA and the parties responsibly accepted it to be an appropriate course, as in my view it was.
90 I turn now to elaborate further as to why it cannot be persuasively submitted that the responsibility for the delay in making the Application was caused by or largely contributed to by the claimed late production of the GWRM Client Authorisation (or, to a lesser extent, the 2019 Mortgage Instrument). I note in this context that counsel for the defendants understandably stated during oral submissions that the issue was really about the timing of the disclosure of the GWRM Client Authorisation more than the mortgages.
91 Closer analysis to the timing and sequence of events reveals otherwise than that contended for by the defendants in relation to delay, and I note the following in this regard:
From the outset, the writ and statement of claim alleged that the plaintiff held the 2019 Mortgages over the Properties and that they were dated 19 November 2019.[85]
In their Original Defence and Counterclaim, which was filed more than a year before the trial was due to commence in early September 2025, and remained in the same form until the late amendment just before trial in late September 2025, the defendants expressly admitted that the plaintiff held the 2019 Mortgages and that they were registered first mortgages dated 19 November 2019.[86]
The relief sought by the defendants in their Original Defence and Counterclaim with respect to the 2019 Mortgages and other documents was based on an alleged estoppel and alleged misleading conduct. No separate issue was raised with respect to (relevantly) the circumstances in which the 2019 Mortgages were registered, or the operation of the TLA.[87]
As the parties understandably accepted, at all times since the registration of the 2019 Mortgages, including since the commencement of the proceedings, the defendants and the plaintiff or their respective solicitors have had the opportunity to explore for themselves the circumstances of the registration of the 2019 Mortgages through information and documents available from, among other things, title searches and obtaining instructions from their client.[88] Indeed, the title searches in evidence relevantly revealed that the 2013 Mortgages were discharged on 19 November 2019 and that the 2019 Mortgages were registered on that same day. For whatever reason, it appears that the defendants may have not taken the opportunity fully to explore the relevant circumstances until shortly before the trial commenced. That said, presumably the admissions made and continued with in the Original Defence and Counterclaim were made on instructions, noting, again, that the sham agreements defence was not introduced into the defendants' pleading until shortly before trial.
The trial was due to commence before Delany J in early September 2025, but had to be postponed for a short period due to Robert's health. Relevantly for present purposes, by the defendants' Amended Defence and Counterclaim filed on 22 September 2025, which was filed subject to objections to be made by the plaintiff, it was alleged in paragraph 17H that Mr Hume from Duffy & Simon '... was required to have a client authorisation form completed and executed by Robert Mould before the mortgages could be electronically lodged with the Registrar of Titles'.[89] In paragraph 17J it was alleged that, neither Robert, Mr Hume, nor Duffy & Simon having discovered the said client authorisation form from Robert, it was to be inferred that no such authorisation existed before 19 November 2019. As is apparent, these allegations related to a client authorisation in respect of Robert, not GWRM or Ben. That allegation was repeated in the settled form of the Further Amended Defence and Counterclaim filed on 15 October 2025 after objections had been dealt with. Again, there was no allegation in that pleading about the GWRM Client Authorisation.
As deposed to in the Calabro Affidavit, on 13 October 2025 the defendants made a request of the plaintiff's solicitors for, among other things, 'authorisations to register the 2019 Mortgages'. On 16 October 2025, three days later, the plaintiff's solicitors promptly disclosed documents in response to the defendants' request, being a week before the trial commenced, and such documents included the GWRM Client Authorisation. Further, such a request could have been made by the defendants at any stage in the proceeding.
The day before the trial commenced, being 22 October 2025, the defendants provided to the Court that afternoon a proposed second further amended defence and counterclaim. That proposed pleading was the first pleading which contained a reference to the GWRM Client Authorisation (in paragraph 17G). However, the defendants expressly elected not to proceed with that proposed amended pleading. Further, and in any event, this proposed pleading did not seek to bring any claim against Duffy & Simon.
The trial then proceeded on the basis of the defendants' Further Amended Defence and Counterclaim filed 15 October 2025, during which the mortgage documents referred to by the defendants were produced, but noting also that the discharge of the 2013 Mortgages and registration of the 2019 Mortgages was readily ascertainable from title searches at any relevant time, as counsel for each of the parties understandably acknowledged during the Hearing.
92 To the extent that it was contended by the defendants that the plaintiff was under some materially earlier obligation to plead or produce the GWRM Client Authorisation, I do not accept that submission. In this context I note that: the defendants' pleading did not raise any issue about the GWRM Client Authorisation; the defendants' original amended pleading (filed shortly before trial) raised the client authorisation issue in respect of Robert only; the defendants had expressly elected not to proceed with some proposed amendments which made reference to the GWRM Client Authorisation the day before trial, by which time the defendants were in possession of the said document in any event; there was no discovery order; and the defendants' 22 September 2025 pleading remained to be finalised because it was subject to objections, which were to be determined by the Court on 14 October 2025, and which resulted in the settled form of the pleading being filed by the defendants on 15 October 2025.
93 To the extent that it was submitted that it was incumbent on the plaintiff to plead in his statement of claim allegations about the GWRM Client Authorisation and the 2019 Mortgages, I make the following observations. First, there was no need or occasion for the plaintiff to make any allegation about the GWRM Client Authorisation in his statement of claim. The plaintiff's case pleads and relies upon the signed and registered mortgages, the existence of which (I add) were admitted in the Original Defence and Counterclaim.
94 Second, the plaintiff expressly and clearly pleaded his reliance on the 2019 Mortgages in the statement of claim, the registration of which was admitted and no issue was taken with the registration until the time of the initially scheduled trial date.
95 Third, there is no allegation in any of the defendants' filed pleadings about the GWRM Client Authorisation, and this remains the position.
96 Fourth, and contrary to the defendants' contention, the plaintiff did make reference to the GWRM Client Authorisation in his pleadings, that reference being in paragraph 29(c) of his amended reply to the further amended defence and amended defence to the further amended counterclaim filed on 22 October 2025, which was filed in response to the defendants' pleading filed on 15 October 2025.
97 I add for completeness that, to the extent that it was submitted that it was incumbent on the plaintiff to address or explain the GWRM Client Authorisation in his opening submissions, that submission is without merit.
98 In any event, even if it had been the case that the plaintiff was required to, or it was desirable for the plaintiff to, produce the GWRM Client Authorisation at some time after the Amended Defence and Counterclaim was filed on 22 September 2025 (which I do not accept), it was produced promptly, by 16 October 2025, in response to a request made three days earlier, which was still a week before trial. Further, this does not change the fact that, at best for the defendants, all of this arose because of the defendants' late amendments that were raised at the time the trial was due to proceed in September 2025.
99 It may also be noted in this context that, even when armed with the GWRM Client Authorisation that is now heavily relied upon in support of the alleged solicitor‑client relationship allegation and the Proposed D&S Claims, the defendants elected to continue with the trial and not to seek to bring forward any claim against Duffy & Simon based upon it until the trial was effectively over, as the above discussion and the Procedural Timeline reveals. That the defendants now later rely upon some evidence in the trial for aspects of the allegations made in the Revised Proposed Second FADCC does not adequately address not raising the issue earlier, particularly given the heavy reliance upon the GWRM Client Authorisation as the effective mainstay of the Proposed D&S Claims.
100 The end point in this context is that, to the extent it was contended that the lateness of the Application was caused or materially contributed to by the conduct of the plaintiff in connection with the GWRM Client Authorisation or the 2019 Mortgages rather than the defendants' own conduct and opportunities, I do not accept that submission. Further, even if it was to be assumed that an issue regarding the GWRM Client Authorisation had arisen on the defendants' late filed pleadings, it does not change the fact that this arose by reason of the defendants' very late amendments, and in circumstances where it had been open to the defendants to explore much earlier any issues associated with the 2019 Mortgages during (at least) the interlocutory stages of the proceeding. To the extent that they did or did not do so, or the reasons for the same, is not revealed by the evidence, although it is clear, however, that the responsibility for the late timing of the Application (at least) essentially rests, at the feet of the defendants, and not the plaintiff.
101 Having regard to the circumstances in which the Application arose and the history of the proceeding, it is evident that the defendants have not provided a satisfactory or adequate explanation for the delay. In this context the observations in Aon (and the other authorities earlier referred to) aptly resonate.
102 In all of the circumstances, and seeking to give effect to the overarching purpose in s 7 of the CPA, taking into account and having regard to the objects and other matters in s 9 of the CPA, as well as the rules, principles and observations earlier referred to, insofar as the Application relates to the amendments and joinder associated with the Proposed D&S Claims against Duffy & Simon, it should be refused.
103 I turn now to the proposed amendment regarding the Proposed 2019 Mortgages Claim against Robert.
104 As mentioned, the defendants seek to introduce a new misleading and deceptive conduct claim against Robert in paragraphs 17FA and 17FB of the Revised Proposed Second FADCC, which are in the following terms:
17FA In the premises of [17A] to [17B] and 17[C] to 17[F], by failing or refusing to inform Ben that he would register new mortgages, Robert engaged in misleading or deceptive conduct contrary to section 18 of the Australian Consumer Law (Vic).
17FB Because of that misleading or deceptive conduct, GWRM and Ben have suffered loss and damage.
Particulars
The loss and damage is (a) the value of any amount found to be secured by the 2019 mortgages against the Land; (b) further or alternatively, the value of any amount found to be payable by the defendants to the plaintiff pursuant to the 2019 mortgages.
105 With respect to this proposed amendment,[90] I have concluded that leave to amend at this late stage ought to be refused. As to the general timing, delay, case management, CPA, and other related considerations, I refer to my earlier observations in connection with the proposed amendments regarding Duffy & Simon, but of course recognising that this proposed amendment of itself would result in less delay, disruption, and related issues than would be the case with the Proposed D&S Claims and the joinder of Duffy & Simon. I also observe further as follows.
106 These new allegations and the proposed new claim are sought to be made very late in the proceeding. Even if leave was to be granted to allow these amendments alone, it would be necessary for the plaintiff to be given the further opportunity to plead to the allegations, consider his evidentiary position, potentially seek to reassess his evidentiary case, explore and consider whether further evidence is required or desired, and determine whether to seek to reopen his case, and related matters. Given the timing, all of this would necessarily extend into at least next year and, on the material before the Court, is likely to be further complicated by the foreshadowed claim against Duffy & Simon.
107 If Ben had informed his advisers that he was never informed that new mortgages were to be registered (as he may have, but that is not known), there was, of course, the opportunity for such an allegation to have been made much earlier in the proceeding if solicitors or counsel explored the issue, and were so instructed, and considered it necessary, desirable and appropriate.
108 Further, the form of the pleaded allegations for the Proposed 2019 Mortgage Claim, and what is actually sought to be alleged, is in my view at best unclear and not sufficiently pleaded, which is a relevant factor to take into account at this late stage.[91] I say this because the primary allegation appears not to be a fully formed allegation of misleading conduct by non-disclosure or silence. For example, it is not clear if it is intended to be an alleged misrepresentation by silence by Robert, or if so, what the alleged representation is said to be - although I note that during the Hearing counsel for the defendants informed the Court that it is in fact intended to be a claim for misrepresentation by silence.[92] If it was not the case that it was to be a claim for misrepresentation by silence, it is also not clear what the silence is alleged to have conveyed, and how it is said to be misleading is not exposed. Further, there is no allegation of reasonable expectation of disclosure, or the basis upon which such an expectation is alleged to exist, or what follows from it in terms of timing or content. Even putting timing to one side, these matters are not insignificant, as many of the relevant authorities reveal.
109 In any event,[93] the allegation as pleaded appears to have little or no reasonable prospect of success on the material before the Court. This is because, even if it was assumed that there was a failure by Robert to orally disclose to Ben about the 2019 Mortgages, this occurred in a context where Ben was in receipt of documents and information regarding the 2019 Loan Agreement that expressly recorded that it was to be on terms, including the taking of mortgages over the Properties. I refer, for example, to the admitted receipt of the letter dated 31 July 2019 from Robert to Ben and GWRM, which expressly refers to the taking of registered first mortgages over the Properties. The provision of the security over the Properties was also referred to, again for example, in the terms of the 2019 Loan Agreement, including (but not limited to) Item 10 of the schedule thereto. That said, even if this consideration was put to one side, no different result would follow given the other considerations, including but not limited to, giving effect to the overarching purpose under the CPA.
110 I accept that if the Proposed 2019 Mortgages Claim is not to be facilitated by resuming the trial in this proceeding in some way the defendants are at risk of facing a strong Anshun estoppel contention if the claim was later sought to be made in a different proceeding. However, this is only one of the considerations to be taken into account in all of the relevant circumstances, including the Court's obligations under the CPA. In my view, whether the Anshun risk is considered alone, or in any combination with any other circumstances, this factor does not tip the balance in favour of the granting of leave to amend in the circumstances. To do so would not well serve the overarching purpose under the CPA in the circumstances.
111 I also observe that at the heart of the allegation is a contention that Ben was not told something by Robert. Whether or not that is so is a matter within Ben's knowledge,[94] and there was always the opportunity to explore this issue with Ben during (at least) the interlocutory phases in this proceeding by asking Ben about it. Being a matter in Ben's knowledge, it did not necessarily require evidence from Robert during the trial to have the opportunity to address it with Ben.
112 As I have said, in the circumstances, leave to amend in respect of the Proposed 2019 Mortgages Claim should also be refused.
113 Given my conclusion that the Application should be refused, and noting that there was no other basis upon which it was contended that the trial of the proceeding should be adjourned to a date to be fixed, to the extent that the trial adjournment application was otherwise pressed, it should also be refused.
114 Counsel for the defendants confirmed in an exchange with the Bench during the Hearing that the defendants relied upon the GWRM Client Authorisation as the basis for the contention that GWRM and Ben were clients of Duffy & Simon and thereby Duffy & Simon owed them a duty of care and fiduciary duties. In any event, irrespective of counsel's understandable position, it is readily apparent from the relevant paragraphs of the Revised Proposed Second FADCC that the GWRM Client Authorisation is the platform for the solicitor-client allegations as between Duffy & Simon, GWRM and Ben.
115 Although the Revised Proposed Second FADCC contained allegations based on the GWRM Client Authorisation that both GWRM and Ben were a client of Duffy & Simon as a result, the basis upon which this is alleged in respect of Ben, is not readily apparent. For example, the GWRM Client Authorisation records GWRM as the client, with Ben signing it as a sole director of GWRM. Further, this is consistent with Mr Calabro's evidence in paragraph 24 of the Calabro Affidavit to the effect that the 'apparent effect of this document' is to have made GWRM a client of Duffy & Simon.
116 For present purposes it is not necessary to explore this issue further, although it does raise a question as to the existence or otherwise of a proper basis for seeking to allege in the Revised Proposed Second FADCC that Ben (as opposed to GWRM) was a client of Duffy & Simon (and was owed fiduciary duties and a duty of care) if, as appears to be the case, the basis for the allegation is the existence and content of the GWRM Client Authorisation.
117 For the reasons referred to above, the Application was dismissed.
118 As I said at the Hearing, subject to hearing any submissions from counsel on the question of costs, and given the result, it was my preliminary view that the costs of the Application should follow the event, and that the defendants should pay the plaintiff's costs of and incidental to the Application, to be taxed on a standard basis if not agreed.
119 After delivering my ruling ex tempore, I expressed my preliminary view regarding the question of costs as referred to in the preceding paragraph, and counsel for each of the parties was provided with an opportunity to make submissions with respect to the question of costs. After taking instructions, counsel for the defendants (in my view responsibly) informed the Court that the defendants did not wish to make any submissions against costs following the event. The plaintiff's counsel also did not make any submissions to the contrary. Consequently, authenticated orders were made to the effect referred to.
[1] During oral submissions counsel for the defendants informed the Court that it was also intended to include a reference to r 9.02 of the Rules, and the Application proceeded on that basis.
[3] Although directions were made to facilitate the filing of affidavits in response by the plaintiff, the plaintiff did not file any additional affidavit material.
[5] But noting that the plaintiff has since acknowledged an error in the calculation of the amount owing as a result of the double counting of capitalised interest for one year, the detail of which is not necessary to address here for present purposes.
[6] Aspects of Ben's position regarding interest and repayment changed materially during oral closing submissions on the last day of the trial, but it is not necessary to canvass the detail of these matters for present purposes.
[8] Further detail is evident from, among other things, the revised agreed chronology, the revised agreed statement of facts, and the parties' respective opening and closing submissions.
[10] [1981] HCA 45; (1981) 147 CLR 589, 602 (Gibbs CJ, Mason and Aickin JJ).
[11] [2023] VSC 430, [34]-[38] (Connock J).
[13] [2011] VSC 136, [38] (Vickery J).
[14] (2023) 73 VR 521; [2023] VSC 253, [77]-[88] (Elliott J).
[15] Which was also said to be the subject of an order made by Judicial Registrar Gitsham on 10 October 2024.
[16] The inclusive definition of 'document' in r 36.01(2) includes a pleading.
[17] [2022] VSC 283, [23]-[31] (Connock J).
[18] [2025] VSCA 58, [137] (Niall CJ, Emerton P and Gray AJA).
[19] [2018] VSC 772, [31]-[34] (Elliott J).
[20] The relevant principles have been set out previously in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 10) [2018] VSC 439, [16]-[18]. They are repeated here for convenience.
[21] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, 204-205 [69] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also ABL Nominees Pty Ltd v Mackenzie (No 2) [2014] VSCA 529, [17] (Derham AsJ).
[22] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, 212 [96], 213 [98]-[99], 217 [111].
[24] Ibid, 213 [98]-[99], 214-215 [102], 217 [111]; Civil Procedure Act 2010 (Vic), s 7.
[25] Supreme Court Rules, r 1.14(1)(b).
[26] [2014] VSC 529, [17]-[22] (Derham AsJ).
[29] [1995] VicRp 14; (1995) 1 VR 209, 215.
[30] Matthews v SPI Electricity Pty Ltd (Ruling No 6) [2012] VSC 70, [33].
[31] [2012] VSC 70, [34].
[32] As to the test, see Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 [29] per Warren CJ and Nettle JA (Neave JA agreeing).
[35] Ibid [38]. Equuscorp Pty Ltd and Sintoff Pty Ltd v Acehand Pty Ltd & Ors [2010] VSC 89, [19].
[38] ACN 074 971 109 v The National Mutual Life Association of Australasia Ltd [2010] VSC 186, [28].
[41] [2011] VSC 370, [7] (J Forrest J), citing Aon [2009] HCA 27; (2009) 239 CLR 175, 217, [111]-[113].
[42] [2015] VSCA 172. See also the recent references to Aon and Northern Health by the Court of Appeal in Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12, [25]-[26] (Beach and Kaye JJA and Croucher AJA) (Billington).
[43] [2015] VSCA 172, [33] (Kyrou and McLeish JJA), footnotes included as in the original.
[44] Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16, [42].
[45] Ultra Thoroughbred [2011] VSC 370, [9] (Kyrou and McLeish JJA).
[46] Northern Health [2015] VSCA 172, [22]. Considerations of this kind were further referred to in Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 [36]-[48] (Kyrou, Ferguson and McLeish JJA), and more recently reinforced in Billington at [25] (Beach and Kaye JJA and Croucher AJA).
[47] Northern Health [2015] VSCA 172, [22].
[48] [2022] VSCA 250, [37]-[40] (Macaulay JA and J Forrest J AJA).
[49] Aon, [103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also Ultra Thoroughbred [2011] VSC 370, [8(f)] (J Forrest J); Northern Health [2015] VSCA 172, [28] (Kyrou and McLeish JJA); Carroll v Goff [2021] VSCA 267, [75] (Maxwell P, Kennedy and Walker JJA).
[50] See, for example, Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) (2016) 332 ALR 199, [2016] FCAFC 2, [114], [128], [129] (Gilmour, Perram and Beach JJ); Goodrich v Kilmore Racing Club Inc [2022] VSC 803 (McDonald J); Tinworth v WV Management Pty Ltd [2009] VSC 552, [34]-[37] (J Forrest J); Greensill v Piper Alderman & Ors [2022] VSC 622, [32] (J Dixon J).
[51] (2023) 73 VR 521; [2023] VSC 253, [77]-[88]. I refer also to the observations of Gillard J regarding multiplicity and inconsistent findings in Tatterson v Wirtanen [1998] VSC 88, [86]-[88]. See also Meyer Heine [2023] VSC 430, [34]-[38] (Connock J).
[52] Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2013] VSCA 378, [13] (Beach JA, with whom Osborn JA agreed).
[53] Tatterson v Wirtanen [1998] VSC 88, [86] (Gillard J). See also Supreme Court Act 1986 (Vic), s 29(2).
[54] Ubertini v Saeco International Group SpA (No 6) [2014] VSC 294, [43].
[55] Main Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd [2007] VSC 43, [77] (Bell J).
[57] Countrywide Austral Pty Ltd v Emergency Media Pty Ltd [2018] VSC 540, [31] (Riordan J).
[58] DL Bailey and JK Arthur, LexisNexis, Civil Procedure: Victoria (online at 15 May 2023) [I 9.06.3].
[61] [1969] 2 Malayan LJ 52, 56.2, cited in Boral Resources (Vic) Pty Ltd v Robak Engineering and Construction Pty Ltd [1999] VSCA 66; [1999] 2 VR 507, 525 [66] (Chernov JA, with whom Batt JA agreed). See also Stuart v Mordialloc Sporting Club Inc [2021] VSC 244, [272] (Randall AsJ).
[62] [1996] FCAFC 870; (1996) 64 FCR 410, 525.2 (Lockhart, von Doussa and Sackville JJ).
[63] Tatterson v Wirtanen [1998] VSC 88, [28]-[29] (Gillard J), cited in Stuart v Mordialloc Sporting Club Inc [2021] VSC 244, [268]; Re Moneysaver Free Coupons Pty Ltd (in liq) [2021] VSC 279, [244] (Randall AsJ).
[64] [1999] VSCA 66; [1999] 2 VR 507, 525 [68].
[65] Tatterson v Wirtanen [1998] VSC 88, [30].
[66] Stuart v Mordialloc Sporting Club Inc [2021] VSC 244, [315] (Randall AsJ), citing Tatterson v Wirtanen [1998] VSC 88, [30] (Gillard J).
[67] Rule 1.13(1) (definition of 'question'). See also Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 572, [33] (Digby J).
[68] Re Moneysaver Free Coupons Pty Ltd (in liq) [2021] VSC 279, [246] (Randall AsJ), citing C_GU Insurance Ltd v Blakeley_ [2016] HCA 2; (2016) 259 CLR 339, 363 [64] (French CJ, Kiefel, Bell and Keane JJ).
[69] Boral Resources (Vic) Pty Ltd v Robak Engineering and Construction Pty Ltd [1999] VSCA 66; [1999] 2 VR 507, 512 [21]-[22] (Batt JA).
[71] [1999] VSCA 66; [1999] 2 VR 507, 509, [5] (Tadgell JA).
[73] [2014] VSC 294, [43].
[74] The defendants did not press the previously foreshadowed amendment that Duffy & Simon were relevantly involved in the alleged conduct the subject of the Proposed 2019 Mortgages Claim.
[76] In no particular order but keeping in mind the principles and observations earlier referred to, the terms of the relevant Rules, and the Court's and the parties' respective obligations under the CPA.
[77] But without prejudice to the hearing and determination of this Application.
[78] Although this does not weigh heavily in the balance, and no different result would follow if it was to be put to one side.
[79] There is no Barnes v Addy claim pleaded against Robert in respect of the alleged breaches of fiduciary duty by Duffy & Simon.
[81] Noting, incidentally, that if there had been any force in that contention, it would also have been the case that the defendants had failed to comply with that requirement.
[82] Which are well known and I do not propose to elaborate on. See, eg, Anshun [1981] HCA 45; (1931) 147 CLR 589, 602 (Gibbs CJ, Mason and Aickin JJ); Australian Executor Trustees Ltd v Lokit Investments Pty Ltd [2023] VSC 141 (Lyons J).
[83] It will also be the case that if such an issue was raised in the future, the defendants will be in a position to submit that they took steps to bring the claim in this proceeding through the Application.
[84] With attendant risks in connection with, for example, inconsistent findings.
[86] Original Defence and Counterclaim [17], but 'otherwise denying' the allegations in [17] of the statement of claim.
[87] Nor was any allegation made regarding the sham agreements - allegations that were introduced in the 22 September 2025 pleadings.
[88] Although it was common ground that the GWRM Client Authorisation would not have been available from such searches.
[90] Including the related paragraphs sought to be amended and referred to in the Revised Proposed Second FADCC.
[91] That said, given the other considerations, no different result would follow on this Application even if this matter was put to one side.
[92] Although what the representation is alleged to be is not articulated.
[93] But considered in the context of this interlocutory application for present purposes only.
[94] And whether or not Robert agrees, does not remember, or otherwise.
Mould
GW & R Mould Pty Ltd [2025] VSC 760
(2009) 239 CLR 175
(1981) 147 CLR 589
(2023) 73 VR 521
(1990) 170 CLR 394
(1995) 1 VR 209
(1997) 189 CLR 146
(2016) 332 ALR 199
(1996) 64 FCR 410
(2016) 259 CLR 339
(1931) 147 CLR 589