Gilmore Finance Pty Ltd v Aesthete Pty Ltd atf the Real Money Unit Trust

This is the fourth day of a seven day plus hearing. The plaintiff’s lay evidence has concluded; its four lay witnesses have been cross-examined. As I understand it, apart from the expert evidence to be adduced by the plaintiff, the plaintiff’s case is now, in effect, closed.

By Notice of Motion filed in Court this afternoon, the plaintiff seeks leave to amend its List Statement in accordance with the document which I have marked MFI-10. A form of the proposed amendment very closely approximating that document was circulated very early the morning of 16 March 2022.

The evidence in support of the application to amend includes evidence that on the second day of the hearing, Tuesday 15 March 2022, counsel reviewed documents produced, admittedly very recently, on discovery by the defendants, and that that review has some connection with the proposed amendment.

The amendment was evidently prompted by, or at least followed, Mr Pritchard SC, who appears with Mr Fernon SC and Mr Macauley for the first to third defendants, handing up an aide memoire document pointing out the “un-pleaded” allegations referred to in the opening submissions.

The proposed amendment is to add to par 15 of the List Statement a large number of particulars as follows:

It is also proposed to add to par 90 of the List Statement a reference to par 15, to in effect incorporate the allegations in par 15 into those in par 90.

It is common ground that there is no difficulty with the amendment proposed in the chapeau to par 15, the amendment proposed in par 15(a), nor that in subpar (iv) to par 15(b) (which refers to a document discovered only in the last few days).

However, the balance of the amendments sought relate to, or are said to arise from, evidence which has been in the plaintiff’s possession for a considerable time. The substantial argument in favour of the amendment is to “align” the evidence and the pleadings; however, the fact is that as I have said almost all the evidence that is now sought to provide a basis to add particularity in par 15(b) has been available for some time.

The proposed particulars in pars 15(b)(i), (ii), (iii), (v) and (ix) are said to arise from Mr Amirbeaggi's affidavit. That affidavit was served in May of last year. It is true that there was a dispute about the adequacy of the pagination and other like matters to that affidavit which resulted in a revised version of that affidavit being served in August 2021. Nonetheless, the document has been in the hands of the plaintiff's advisors for nine odd months.

The delay incorporating the material from Mr Amirbeaggi's affidavit into the pleading is said to have been because of the "interlocutory steps" that had been taken since August 2021. It is true there has been much activity, particularly in the new year, concerning discovery but I cannot see how that provides an adequate basis for this pleading to be foreshadowed only on the third and fourth days of the hearing.

Proposed particulars 15(b) (vi) and (xii) are said to arise from Mr Gilmore's first affidavit, served in October 2020. No explanation has been given as to why it is only now that that material is sought to be incorporated.

Proposed particulars 15(b) (vii), (viii) and (xvi) are said to arise from the evidence given by Mr Armstrong. In his affidavit, Mr Armstrong gave the critical evidence relied upon by the plaintiff to show that Mr Amirbeaggi, in effect, asked Mr Armstrong and perhaps Mr Wayman to misrepresent to Mr Gilmore the level of the former's investment in the relevant project. The balance of the "evidence" of Armstrong is that given in cross-examination over a day when Mr Pritchard SC sought to challenge that evidence. However, the substance of the matter is that Mr Armstrong's version of events has been in the plaintiff's hands since October of last year. I do not see what justification there could be now to "align" the pleading to that evidence halfway through the trial.

Finally, as to subpar (xvii) to par 15(b), reference is there made to an email which the plaintiff now accepts has been in its possession for some time.

As to the proposal to incorporate by reference the allegations in par 15 into par 90, it is not clear to me what the implications to the defendants would be of doing that. Whatever they are, I do not consider the defendants should have to face them at this stage of the proceedings.

For those reasons, I propose to allow the plaintiff to amend the List Statement by adding in the change proposed in the chapeau to par 15 and in par 15(a) and to add the particular (iv) in MFI-10, to those already appearing in the List Statement in relation to par 15(b).

Otherwise, the motion is dismissed with costs.