Allied Capital Resources Ltd v. Roller Industries Ltd and Others

HCA005907A/1982

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Mantell J.

Date of Hearing: 29th May, 1984.

Date of Delivery of Ruling: 29th May, 1984.

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RULING

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1. This action was listed for the hearing before me last Friday and I think it had been set down for four days. Unfortunately, it was not reached until this morning and when it was called on, Mr. Allman-Brown for the defendants applied to re-re-amend the defence so as to introduce what I find to be a very substantial new ground for resisting the claim made by the plaintiff. He has submitted his draft of the proposed amendments and of particulars of those amendments which have been asked for by Mr. Tong. If allowed, those amendments, as I say, will raise a substantial  issue between the parties which can only be resolved, I am told, by the calling of evidence which could not have been anticipated prior to the nature of those amendments being made known to the plaintiff. On that basis, the application is resisted by Mr. Tong, not unreasonably as it seems to me, because a consequence of the amendments being allowed will inevitably be an adjournment not only to give the plaintiff an opportunity to consider its position and the form of the pleadings but also to give the plaintiff an opportunity to meet those averments which are contained in the proposed amendments.

2. I am always loth to shut out a party from making a substantial point, particularly where, as here, if resolved in its favour it will dispose of the case as it seems to me, though I should interpose that the amendments only relate to the position of the second and third defendants and everything I say about the issue raised by the proposed amendments must be understood in that light. But it does seem to me that if these amendments are to be allowed, it should only be upon stringent terms. I have indicated what those terms ought to be and Mr. Allman-Brown has accepted that the amendment will only be allowed on those terms and pursues his application nonetheless and he understands the consequences. In the event, I am prepared to allow this application to amend the defence in the terms of the draft submitted to me. But the terms upon which I shall allow that amendment are these: firstly, that the defendants should bring into court the whole of the amount claimed by the plaintiff within 21 days; secondly, that in default of bringing the whole of that sum into court within 21 days, judgment shall be entered in that sum for the plaintiff; thirdly, that the costs occasioned by the adjournment shall be paid by the defendants. I have not acceded to the submission made by Mr. Tong that those costs should be other than on the usual scale and I have not acceded to the submission that the whole of the costs incurred to date should be the plaintiff's. I can see no reason for making a more stringent order as to costs than that indicated.  With regard to the re-re-amended defence, I order that it should be filed within 7 days. I give leave to the plaintiff to re-re-amend the Statement of Claim to deal consequentially with the re-re-amended defence and to re-amend the reply for the same purpose. The costs of those consequential amendments are to be the plaintiff's in any event.

3. I am reminded that I need to give further directions as to what has to happen to the money brought into court. I order that it should be placed on monthly deposit account and so that there is no misunderstanding the amount which is to be brought into court is US$137,587.42. The amount for which judgment will be entered in default is the same sum but judgment will be entered in default without prejudice to the plaintiff's claim for interest after 1st July 1982.

Representation:

Ronny Tong instructed by Gallant Y.T. Ho & Co. for plaintiff.

Andrew Allman-Brown instructed by John Ip & Co. for all defendants.