FEDERAL COURT OF AUSTRALIA

Perpetual Trustees Australia Limited v Paladin Wholesale Funding Pty Limited [2011] FCA 473

THE COURT ORDERS THAT:

1.    Paragraphs 9, 10, 14(a), 14(c), 14(d), 14(f), 15, 17, 18 and 19 of the defence to the further amended statement of claim, filed on 7 February 2011, be struck out.

2.    The first defendant serve its proposed amended defence on the plaintiff on or before 28 March 2011.

3.    The plaintiff be granted leave to amend the further amended statement of claim, with such second further amended statement of claim (if any) to be filed and served on or before 18 April 2011.

4.    The first defendant pay the plaintiff’s costs of and incidental to the plaintiff’s application heard by the Court on 28 February 2011.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    The plaintiff (Perpetual) sues the first defendant (Paladin) for damages or compensation for misleading and deceptive conduct in contravention of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) and the Corporations Act 2001 (Cth) (the Corporations Act). Perpetual also sues Paladin for damages and an indemnity for breach of contract and for damages or compensation for misleading or deceptive conduct in contravention of the Fair Trading Act 1987 (NSW) (the Fair Trading Act). Perpetual filed a further amended statement of claim on 23 November 2010, to which Paladin filed a defence on 7 February 2011. By further amended notice of motion filed in Court today, Perpetual seeks to strike out several paragraphs of the defence.

2    In order to explain the issues raised by the notice of motion, it is desirable to say something about the claims made by Perpetual in its further amended statement of claim. The second defendant (Integral) was joined to the extent necessary by the further amended statement of claim.

3    The further amended statement of claim begins by asserting that, on 13 July 1990, a trust known as the Puma Fund (the Fund) was established with Perpetual as trustee. At all material times the Fund had a securitised mortgage lending programme. It is then alleged that a mortgage origination deed (the Deed) was entered into between Perpetual, Macquarie Securitisation Limited (Macquarie) and Paladin, under which Paladin was appointed as Macquarie’s non-exclusive delegate to manage and administer certain aspects of the Fund, subject to the provisions of the Deed. The Deed contemplated that Paladin would submit an application or applications to Macquarie for Perpetual to make loans secured by mortgage over real property.

4    By the Deed, Paladin warranted to Perpetual and to Macquarie that the provisions of the “Puma Programme – Retail Programme Parameters” of July 2003, issued by Macquarie, would be fully complied with, and that an application for loan approval by a borrower under an approved mortgage loan would be fully investigated by Paladin and would comply with the programme parameters. The further amended statement of claim alleges that on 11 October 2004, an origination agreement (the Agreement) was entered into between Paladin and Integral, under which Integral was appointed as a referrer to assist Paladin in originating mortgage loans on behalf of, amongst others, Perpetual.

5    The programme parameters that were incorporated by reference into the Deed required Paladin, in respect of each application, to ensure that it had received a duly completed and signed application for finance by a potential borrower, together with all required evidence regarding the financial position of the borrower. The further amended statement of claim then asserts that, on or about 17  September 2004, an application form dated 17 September 2004, purportedly bearing the signature of Mr Warren Austin Richards of Kings Park, New South Wales, was submitted by Integral to Paladin.

6    Shortly after that time, Paladin made an application to Macquarie purporting to be an application for an approved mortgage loan to be made to Richards. On 2 September 2004, Macquarie approved the Richards application made by Paladin, and on 17 November 2004, a loan contract was purportedly executed by Richards. On 24 November 2004, a mortgage over property owned by Richards was purportedly given by Richards in favour of Perpetual to secure the obligations of Richards under the loan contract entered into on 17 November 2004. The loan that was the subject of that contract was drawn down in full in the sum of $585,000.

7    The further amended statement of claim then asserts that the purported signature of Richards on each of the Richards loan application form, the Richards loan contract and the Richards mortgage was forged and that Richards was not applying to Perpetual for a loan of $585,000 in September 2004 or for any loan at all. It then asserts that, as a result, the Richards loan contract never took effect and that the Richards mortgage did not secure any of the repayments purportedly owing by Richards under the Richards loan contract. That is the background against which Perpetual then makes assertions of various secondary obligations arising on the part of Paladin.

8    First of all, there are allegations of breaches of the Deed. The further amended statement of claim alleges breaches of a number of specific provisions of the Deed on the part of Paladin and asserts that, as a result of those breaches, Perpetual has suffered loss and damage. Subsequently, the further amended statement of claim asserts that, in submitting the Richards application to Macquarie for approval, Paladin made certain representations to Macquarie on which Perpetual relied.

9    It is then asserted that Paladin engaged in conduct in contravention of s 12DA of the ASIC Act; s 1041H of the Corporations Act and s 42 of the Fair Trading Act. It is alleged that the representations caused Perpetual to suffer loss and damage. The loss and damage, in effect, is the amount of the loan that was advanced, purportedly on the security of the forged mortgage. In the defence to the further amended statement of claim, two matters are relevantly raised. First, it is said that Paladin has available to it a defence of contributory negligence by the operation of Part 1A of the Civil Liability Act 2002 (NSW) (the Civil Liability Act). Secondly, the defence asserts that a number of other parties, including Integral and Macquarie, are concurrent wrongdoers with Paladin within the meaning of the Civil Liability Act. In order to explain the issues raised by those defences, it is necessary to explain them in a little more detail, together with the relevant provisions of the Civil Liability Act. The argument proceeded on the basis that the provisions of the Civil Liability Act were attracted to this proceeding by the operation of s 79 of the Judiciary Act 1903 (Cth).

10    Section 5A(1) of the Civil Liability Act provides that Part 1A of the Civil Liability Act applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. Division 2 of the Civil Liability Act deals with duty of care. Section 5B deals with general principles, and s 5C deals with other principles. Division 3 is concerned with causation. Section 5D deals with general principles. Section 5E deals with onus of proof.

11    Division 4 deals with assumption of risk, and consists of ss 5F, 5G, 5H and 5I, which cover the following topics:

    the meaning of obvious risk, in s 5F,

    injured persons presumed to be aware of obvious risks, in s 5G,

    no proactive duty to warn of obvious risk, in s 5H, and

    no liability for materialisation of inherent risk, in s 5I.

12    Division 5 is concerned with recreational activities. Section 5L deals with liability for harm suffered from obvious risks of dangerous recreational activities. Section 5M provides that there is no duty of care for recreational activity where there is a risk warning. Section 5N deals with waiver of contractual duty of care for recreational activities. Division 6 is concerned with professional negligence. Section 5O deals with the standard of care for professionals. Section 5P provides that Division 6 does not apply to the duty to warn of risk. Division 7 is concerned with non-delegable duties and vicarious liabilities.

13    Division 8 is the critical division for present purposes and deals with contributory negligence. Section 5R, which is headed “Standard of contributory negligence”, provides as follows:

(1)    The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2)    For that purpose:

(a)    the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b)    the matter is to be determined on the basis of what that person knew or ought to have known at the time.

14    Section 5S is headed “Contributory negligence can defeat claim” and provides as follows:

In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

15    Section 5T is concerned with contributory negligence and claims under the Compensation to Relatives Act 1897. That provision has no application in the present proceeding.

Paragraphs 9 and 10

16    The first question concerns paragraphs 9 and 10 of the defence. Paragraph 9 is said to be in answer to paragraph 65 of the further amended statement of claim, and paragraph 10 is said to be in answer to paragraph 75 of the further amended statement of claim. The structure of paragraphs 9 and 10 is the same. Paladin says that, if Perpetual did suffer loss or damage following any breach by Paladin, in the case of paragraph 9, or following any misrepresentation by Paladin, in the case of paragraph 10, then Perpetual’s claim is a claim for harm resulting from negligence.

17    Hence, Paladin asserts, Part 1A of the Civil Liability Act has the effect of making available a contributory negligence defence, regardless of whether or not Perpetual’s claim is brought in tort, in contract, under statute or otherwise. In those circumstances, such damage as Perpetual might otherwise recover should be reduced by the loss resulting from Perpetual’s own failure to take reasonable care. The relevant particulars are that Perpetual failed to take care by reason of its:

(a)    accepting a Loan to Valuation Ratio (LVR) of 90 per cent;

(b)    failing to make its own inquiries into the details contained within the loan application documentation;

(c)    failing to acquire independent legal advice; and

(d)    using an all moneys mortgage.

18    There is a complaint about the particulars as well as the substance of the defence raised by paragraphs 9 and 10. I shall deal with the substance first.

19    The essence of the complaint made by Perpetual in relation to paragraphs 9 and 10 is that, in those paragraphs, Paladin asserts that Part 1A of the Civil Liability Act creates, in effect, a defence of contributory negligence to an action in contract or under statute, even though there may be no such defence available under the general law. I do not consider that that assertion is tenable.

20    It is clear enough, from the observations made by the relevant ministers when the bill for the Civil Liability Act was introduced into the New South Wales Parliament, that Part 1A was designed to give effect to certain recommendations made in the report by the committee appointed to review the law of negligence (the Ipp Report). The contention of Paladin, in effect, is that, by a side wind, a defence of contributory negligence was introduced by Part 1A. It is curious, if that was the intention of the legislature, that there was no mention of it during second reading speeches by ministers in either the Lower or Upper House. There is no suggestion in the Ipp Report that Part 1A was intended to introduce into the law of New South Wales what would be a fairly significant reform or change in the law, by creating a defence of contributory negligence where one was not otherwise available.

21    Paladin relied on observations about s 5A made by the New South Wales Court of Appeal, to the effect that, by its express words, s 5A makes Part 1A of the Civil Liability Act applicable to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise (see Booksan Pty Limited v Wehbe [2006] Aust Torts Reports 81-830; [2006] NSWCA 3). However, the observation made was that the effect of that provision must be seen in the context of the repeal of the Statutory Duties (Contributory Negligence) Act 1945 (NSW) (the 1945 Act) and s 7(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (the 1965 Act), which resulted in contributory negligence once more becoming a defence to a claim for breach of statutory duty. The Court of Appeal said that the consequences of the repeal of those provisions and the insertion of s 5A into the Civil Liability Act were clear. That is, irrespective of how a claim is formulated, if in substance it is a claim for damages for harm resulting from negligence, a defence of contributory negligence may be raised in defence to that claim even if it is based on a breach of statutory duty. Division 8 of the Civil Liability Act, particularly ss 5R and 5S, which set out principles applicable to contributory negligence, would then apply to such a defence.

22    However, I do not consider that the Court of Appeal, in making those observations, was accepting that, merely by the enactment of Part 1A, a defence of contributory negligence was being introduced. Rather, it is clear, in my view, that what was being said is that the effect of the repeal of the 1945 Act and s 7(1) of the 1965 Act was to reinstate the defence of contributory negligence that had been abrogated by those provisions. Once that defence, which arose under the common law, was available, then Division 8 qualified that defence according to the terms of ss 5R, 5S and 5T.

23    In my view, nothing in Part 1A suggests that the New South Wales Parliament was intending to introduce a new defence of contributory negligence that was not otherwise available. Certainly, s 5A refers to Part 1A applying to a claim brought in contract or under statute. However, that is only because there are some provisions, to which I have briefly adverted, that could have application in a claim brought in contract or under statute. That is not to say that every part of Part 1A was to be treated as creating something that was not otherwise in place under the general law. In the circumstances, I consider that paragraphs 9 and 10 are misconceived and should therefore be struck out.

24    That is not to say, however, that it would not be open to Paladin to plead a defence of contributory negligence. It may well be that there is at least an arguable case that some notion of contributory negligence could be pleaded as an answer to the breach of contract claim, in the sense that it could be shown that the damage claimed by Perpetual was not caused by the alleged breach of contract by Paladin. Paladin may well be able to demonstrate that, in relation to the specific loss and damage claimed by Perpetual, the real or immediate cause was Perpetual’s own failure to take care in its own interest, rather than the breach of contract alleged against Paladin.

25    Accordingly, it would be appropriate to permit Paladin to replead a defence of contributory negligence, to which, of course, Division 8 of Part 1A would apply. If such a repleading is propounded, the present particulars would require some revision. The first particular was explained in the course of argument as an assertion that a prudent lender would not lend more than 80 per cent of LVR. That, of itself, is not sufficient to constitute particulars of failing to take care in one’s own interest. It would be necessary to make further assertions as to the nature of the lending practice in which Perpetual was engaged.

26    For example, it is perfectly feasible that a loan might be made in excess of 90 per cent of the LVR of a property intended to secure the loan if, as a result of the commercial bargain struck, the rate of interest was sufficiently high to compensate for the additional risk involved at lending an amount of more than 90 per cent of LVR. There is no suggestion, in this case, that the loss was occasioned because the value of the secured property was not sufficient. The loss was occasioned because the secured property was simply not available at all, by reason of the forgery.

27    The fourth particular was also explained in the course of argument. The assertion is that the form of the mortgage was ill-conceived, insofar as it purported to secure all moneys owing on any account whatsoever. It was suggested that the mortgage could have been drafted in a different fashion, which would have imposed a charge on the secured property, even though the mortgage was forged, by the operation of the indefeasibility provisions of the Real Property Act 1900 (NSW). Again, it would be necessary to spell out that assertion in any particulars, if repleading is to be undertaken.

Paragraphs 14 to 19

28    The second substantive complaint is concerned with paragraphs 14 to 19 of the defence, and arises out of Part 4 of the Civil Liability Act. Part 4 is concerned with proportionate liability. Under s 34(1), Part 4 applies to what are described as “apportionable claims”, being:

(a)    a claim for economic loss or damage to property in an action for damages arising from a failure to take reasonable care,

(b)    a claim for economic loss in an action for damages under the Fair Trading Act for a contravention of section 42 of that Act or under the Australian Consumer Law (NSW) for a contravention of section 18 of that Law.

29    Under s 34(2), a concurrent wrongdoer is defined as person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim. Section 35(1) then provides that, in any proceedings involving an apportionable claim, the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just, having regard to the extent of the defendant’s responsibility for the damage or loss.

30    Section 35(3) provides that, in apportioning responsibility between defendants in the proceedings:

(a)    the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law, and

(b)    the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings.

31    I interpose here that s 35(3)(a) seems to assume that there is some relevant law under which contributory negligence arises. That tends to reinforce the conclusion that I have reached in relation to Part 1A.

32    Section 35A(1) then provides that, if:

(a)    a defendant in proceedings involving an apportionable claim has reasonable grounds to believe that a particular person (the "other person") may be a concurrent wrongdoer in relation to the claim, and

(b)    the defendant fails to give the plaintiff, as soon as practicable, written notice of the information that the defendant has about:

(i)    the identity of the other person, and

(ii)    the circumstances that may make the other person a concurrent wrongdoer in relation to the claim, and

(c)    the plaintiff unnecessarily incurs costs in the proceedings because the plaintiff was not aware that the other person may be a concurrent wrongdoer in relation to the claim,

the court hearing the proceedings may order that the defendant pay all or any of those costs of the plaintiff.

33    Section 36 deals with the non-recovery of contribution from the defendant. Under that provision, a defendant against whom judgment is given as a concurrent wrongdoer in relation to an apportionable claim cannot be required to contribute to any damages or contribution recovered from another concurrent wrongdoer in respect of the apportionable claim (whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant). Further, such a defendant cannot be required to indemnify any such wrongdoer.

34    Finally, s 37(1) provides that, in relation to an apportionable claim, nothing in Part 4, or any other law, prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any damage or loss from bringing another action against any other concurrent wrongdoer for that damage or loss.

35    In paragraphs 13 and 14 of the amended defence, Paladin says, in the alternative to the earlier assertions in the defence, that, if it has any liability to Perpetual, which is denied, Perpetual’s claim is for economic loss within the meaning of s 34(1)(a) of the Civil Liability Act arising from a failure to take reasonable care and, hence, is an apportionable claim under the Civil Liability Act. Paladin then asserts that, if it has any liability to Perpetual, certain persons are concurrent wrongdoers in respect of Perpetual’s alleged loss in respect of the Richards loan. Relevantly, four persons are identified, as follows:

(a)    First American Title Insurance Company of Australia Pty Limited (First American Title),

(c)    Deborah May Cook,

(d)    Graham Kent Stuart,

(f)    The fraudster or fraudsters falsely calling himself, herself or themselves by the name of Mr Warren Austin Richards.

36    Paragraph 15 then alleges that First American Title is liable to Perpetual. Paragraph 17 alleges that Ms Cook is liable to Perpetual. Paragraph 18 alleges that Mr Stuart is liable to Perpetual. Paragraph 19 asserts that the fraudster or fraudsters has or have a liability to Perpetual. There are deficiencies in the pleading in paragraphs 15, 17 and 18 which, as I understand it, are not seriously disputed by counsel for Paladin.

37    Paragraph 15(a) asserts that First Title was a concurrent wrongdoer because it had a duty to Perpetual to take reasonable care to ensure that, in entering into the Richards loan, Perpetual would obtain the security it required in return for the funds advanced. That is an assertion of a specific duty to do something, without specifying the precise circumstances from which the duty of care was said to arise.

38    Paragraph 15(b) then asserts that First Title did not take reasonable care that the required security was obtained, because it used an all moneys mortgage, which results in nothing being secured by the mortgage in the event of fraud, in circumstances where a solicitor ought to have been aware of the risks of using an all moneys mortgage. Something more than that oral assertion is necessary in order to constitute a pleadable claim by Perpetual against First Title.

39    Paragraphs 15(d) and 15(e) assert that First Title represented itself to hold a properly completed and executed identification record for Richards, and that First Title knew that Perpetual would be relying upon the representation in determining whether to proceed to advance money under the Richards loan. It is not clear whether known reliance is the sole foundation or one of several material facts relied upon to justify the assertion of liability to Perpetual on the part of First Title.

40    Paragraph 15(g) asserts that the representation was untrue, but does not specify the matters in respect of which it is said that the representation was untrue. For example, it may be asserted that First Title did not have any identification record or that it had an identification record that was not properly completed, or an identification record that was not properly executed.

41    Paragraph 17 begins with an assertion that Ms Cook had a duty to Perpetual to identify the borrower properly in completing a section 21 certificate. A section 21 certificate is apparently a certificate of identification for a signatory to an account. There are no facts alleged from which it could be concluded that Ms Cook owed some duty of care to Perpetual, and that there was a breach of that duty of care in failing to identify the borrower effectively in the section 21 certificate.

42    There is an allegation in paragraph 17(h) that Ms Cook acted in contravention of s 42 of the Fair Trading Act. However, there is no assertion that she engaged in conduct that was in trade or commerce, which is a prerequisite for the application of s 42 of the Fair Trading Act.

43    Paragraph 18(f) alleges that Mr Stuart had no basis to believe a representation that the signature on the mortgage was the signature of Richards. That seems to be a more serious allegation than is made against Ms Cook, against whom, for example, it is alleged that she made a negligent mis-statement. Paragraph 18(f) is in the nature of a claim in deceit against Mr Stuart, which is not properly particularised.

44    Similar complaints are also made in relation to paragraphs 17 and 18 as are made in relation to paragraph 15. In my view, the three paragraphs are defective and should be struck out. However, there is every reason to think that repleading may overcome the deficiencies to which I have referred.

45    That brings me to paragraph 19, which is in a category different from paragraphs 15, 17 and 18. Paragraph 19 asserts that, if Paladin has any liability to Perpetual, the fraudster was a concurrent wrongdoer, because the fraudster obtained funds from Perpetual by means of fraud and deceit, practised upon Perpetual through knowingly submitting false loan applications to Perpetual for financial reward.

46    There are two complaints in relation to paragraph 19. The first is that it is clearly intended as an allegation of fraud or deceit, but does not make the several separate allegations that must be made in a way that would enable Perpetual to understand precisely what case it is asserted to have against the fraudster. The assertions of fraud and deceit are all rolled up into one. It may well be that it will be a simple matter for the pleading to be remedied to ensure that each of the necessary elements of the tort of deceit or fraud are set out.

47    The second complaint, however, is based on the provisions of Part 4 of the Civil Liability Act. Perpetual’s complaint is that paragraph 19 does not identify the fraudster. It is required that the pleading of any reliance on Part 4 must state the material facts demonstrating the entitlement to have liability reduced under Part 4. In order for a person to be a concurrent wrongdoer, it must be shown that he or she is one whose acts or omissions caused the damage or loss that is the subject of the claim.

48    On one view, therefore, for a defendant to assert that there is a person who is a current wrongdoer, the defendant must plead the necessary elements that result in the asserted conclusion. Those elements are the existence of a particular person, the occurrence of an act or omission by that particular person and a causal connection between that occurrence and the loss that is the subject of the claim (see Ucak v Avante Developments [2007] NSWSC 367 at [33]–[35]). The question is whether one needs to go beyond asserting the existence of a particular person, and whether there must be an assertion of the identity of the concurrent wrongdoer.

49    It is highly desirable that any defendant be required to plead the proportionate liability defence in a manner that discloses the cause of action and damage in at least as detailed a manner as would be required of an initiating process for such a cause of action. That information should include:

(a)    the identity of the concurrent wrongdoer,

(b)    the basis for the cause of action (whether it is contract, tort or the like), and

(c)    the damage, being the aspects of causation, the alleged extent and proportion of the damages and the causal connection with the damage said to be suffered by the plaintiff in the proceeding.

(see HSD Co Pty Limited v Masu Financial Management Pty Limited [2008] NSWSC 1279 at [18]).

50    Part 4 of the Civil Liability Act does not specifically require that the identity of a concurrent wrongdoer be specified. However, I consider that Part 4 at least requires that facts be asserted from which it can be concluded that there is an individual guilty of specific acts at some specified time. Paragraph 19 fails dismally to satisfy at least those requirements. No doubt that is because the pleader simply did not have the requisite knowledge. It may well be that Paladin does not have that knowledge.

51    Whether or not it is possible for Paladin to identify an individual with a name who was the person alleged to have made some false representation may not be decisive in terms of satisfying the pleading requirement. However, it is essential that the pleading assert each element of fraud and deceit, if not by reference to a name, then by reference to some person being at some place at some particular time when a fraudulent representation is alleged to have been made.

52    In all of the circumstances, I consider that paragraph 19 should also be struck out. It would follow that paragraphs 14(a), (c), (d) and (f) should be struck out, although, if paragraphs 15, 17, 18 and 19 were repleaded in a satisfactory fashion, then those subparagraphs of paragraph 14 could be reinstated.

Leave to Replead

53    That brings me to the final question, namely the extent to which, if at all, Paladin should be permitted to replead the matters that are the subject of the paragraphs about which complaint has been made. Perpetual points out that it is at least arguable that any cause of action against the alleged concurrent wrongdoers might be statute-barred.

54    The further amended statement of claim asserts that the loan in question was made on 24 November 2004. Six years from that time has since expired. Perpetual says that it ought not to be put in the position now where Paladin is permitted to plead a defence that is allowed to stand in circumstances where it may be too late for Perpetual to succeed in a claim against the alleged concurrent wrongdoers. That, however, raises a nice question, in that it has been suggested that by no later than October 2010 there was some intimation given to Perpetual, or its advisers, of the possibility of these concurrent wrongdoer claims.

55    The rights and wrongs of that question would require some considerable further investigation into the precise communication that took place and the extent to which it was reasonable for Perpetual to do nothing about attempting to join the alleged concurrent wrongdoers prior to the expiration of any limitation period. But for that question, I would certainly grant leave to Paladin to replead the assertions made in the impugned paragraphs of the defence.

56    In the circumstances, however, I consider that the appropriate course is to direct Paladin to serve on Perpetual, within a reasonably short time, a proposed amended defence to the further amended statement of claim. Perpetual should then be given the opportunity to file and serve on Paladin and Integral any second further amended statement of claim that it may be advised to propound in the light of the terms of the proposed amended defence. I would defer consideration of any application by Paladin for leave to file the proposed amended defence until after it is known whether any other defendants proposed to be joined in the second further amended statement of claim as concurrent wrongdoers intend to rely on any limitation defence. If they do not, that would be sufficient for me to give leave for the amended defence to be filed. If, however, such a defence were foreshadowed by the prospective concurrent wrongdoers, it would be necessary to investigate further the precise circumstances surrounding the absence of joinder of those defendants.

57    Such further consideration of the facts would be on the basis that no party has any particular advantage by reason of the order in which these matters have been dealt with. That is to say, I do not intend to suggest that Paladin will necessarily be precluded from relying on the concurrent wrongdoer defences even if the concurrent wrongdoers seek to rely on a limitation defence. That is a matter that will be examined afresh and from first principles, assuming the question arises.

Conclusion

58    It follows, as I have said, that paragraphs 9, 10, 14(a) (c) (d) and (f), 15, 17, 18, and 19 of the defence should be struck out. It also seems to me to be appropriate that Paladin should bear the costs of the motion filed in Court today.

Associate:

Dated:    10 May 2011