Lewis v Martinez and the persons named in the Schedule (No 6)

1. [1]

   I delivered the principal judgment in this matter on 8 April 2024 (Lewis v Martinez and the persons named in the Schedule (No 5) [2024] NSWSC 359). I made the following declarations and orders:

2. [2]

   On 15 April 2024, the plaintiff filed a notice of motion seeking variation of the orders, in particular Order 2. My power to make the orders sought in the motion is said to arise from r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW). It is not suggested that r 36.17 (the slip rule) is applicable.

3. [3]

   The motion is supported by an affidavit of Mr Benjamin Dibden dated 15 April 2024. Mr Dibden is the plaintiff’s solicitor. The affidavit quotes an order made by Slattery J on 10 February 2023 and annexes some pages from the transcript of the hearing before me. The order made by Slattery J was:

4. [4]

   The plaintiff submitted that I should exercise the jurisdiction provided by r 36.16 because:

5. [5]

   Looking at the reasons given in the preceding paragraph, I agree with (a) and (b), I do not agree with (c). It is not necessary to comment on (d).

6. [6]

   The decision I gave on 8 April 2024 was a final decision. It is not to be varied other than in special circumstances. The plaintiff referred me to this overall statement of principle in Johnson v McKinnon (No 2) [2022] NSWCA 22, at [5]:

7. [7]

   The defendants also relied upon Johnson and in addition referred me to another decision of the NSW Court of Appeal, Majak v Rose (No 5) [2017] NSWCA 238, from [12]-[13]:

8. [8]

   In State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 the above principles were emphasised, from [17]-[18]:

9. [9]

   It can be immediately seen from the above decisions that r 36.16 does not provide an opportunity to re-agitate issues within the litigation and should certainly not be treated as an avenue open to a litigant in lieu of an appeal. As I observed during the hearing of the motion, I was under the impression that I was hearing submissions as if on appeal. At one stage Mr Douglas KC said:

10. [10]

    His Majesty’s counsel may be right that I am wrong, but that is not a decision for me to make, rather (on the assumption that I disagree) it is a matter for the Court of Appeal to decide if I was “wrong in law.”

11. [11]

    I will deal briefly with each of the four areas in which it is asserted I suffered from a misapprehension of the law or the plaintiff’s submissions or did not deal with a particular matter.

The date of dissolution point

1. [12]

   The plaintiff approached this point on the basis that I must have had a misapprehension because there was no choice but to order that the date of dissolution was the date of my judgment. There certainly are a number of authorities that suggest that the date should be the date of judgment. For example, in Williams v Nicoski [2003] WASC 131 Barker J said at [320]:

2. [13]

   There seems little doubt that the partnership in the present case was a partnership at will. The reference to Phillips v Melville [1921] NZLR 571 suggests that a partnership can be dissolved retrospectively. In addition, in Williams, the following appears from [271]:

3. [14]

   While I accept that the ‘usual’ position may be that dissolution occurs on the date of judgment, I do not accept that there is a rule to this effect and that there is no discretion as to a different time of dissolution or that I was not able to retrospectively set the date of dissolution as at the date of the filing of the statement of claim.

4. [15]

   In addition, as I was reminded more than once by the defendants, the plaintiff did not plead the dissolution should occur from the date of judgment. I would accept that such a pleading would not be necessary if there was no choice as to the date of dissolution. However, as seen above, that is not the case.

5. [16]

   Further, although the plaintiff pleaded repudiation as an option, he nevertheless suggested that if there had been a repudiation it was accepted by the filing of the statement of claim, which in turn would have dictated the date of dissolution. I specifically, at [115], stated that:

6. [17]

   Accordingly, I reject the plaintiff’s submissions on the date of dissolution point.

The buy-out order point

1. [18]

   The plaintiff’s complaint here seems to arise from the terms of [118] of my principal judgment. This paragraph needs to be read in the light of at least the two preceding paragraphs:

2. [19]

   I specifically said in [118] that the “nature and heads of the damages” which the plaintiff seeks are kept alive. This followed my quoting senior counsel for the defendants stating that damages should be part of the assessment process. I see no confusion, no misapprehension, and no reason for any variation. The assessment process will take place and will decide upon the nature of the damages which flow from my liability findings. I specifically adopted, with slight amendment, one of the orders sought by the plaintiff.

The Capital Partner point

1. [20]

   The issue here seems to be whether or not the plaintiff should have pleaded that he remained a Capital Partner. At [112] I said:

2. [21]

   The plaintiff says that there was no need for him to plead that he remained a Capital Partner because, as a matter of law, having not been properly expelled he logically remained a Capital Partner. I accept that, as I stated at [108], the plaintiff’s written submissions said that the plaintiff remains a Capital Partner. However, there was no pleading to that effect and the reality of the situation was that following the purported expulsion the plaintiff had not acted as, nor was treated as, a Capital Partner. This was not the plaintiff’s fault. This is precisely why he now has an entitlement to damages as contemplated by [118] of my reasons.

3. [22]

   Again, I reject the notion of any misapprehension.

The loss of a chance point

1. [23]

   This point also arises from an overly restrictive reading of [118] of my reasons. The plaintiff seems to be suggesting that I had blocked his opportunity to claim damages for a loss of chance. I will repeat the final sentence of [118]:

2. [24]

   The confinement asserted by the plaintiff simply does not exist. If otherwise provable, I can see no reason why the plaintiff cannot recover damages for a loss of chance (see for example Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12.)

3. [25]

   Finally, the plaintiffs written submissions refer to the possibility of confusion as to the meaning of my reasons in [13] of the principal judgment, in particular whether I was making findings or only referring to the defendants contentions. I think this point was discussed during the hearing but in case of doubt [13] is confined to the defendants submissions.

Conclusion and orders

1. [26]

   The result of all of the above is that I do not see any entitlement of the plaintiff to an order pursuant to r 36.16. I make the following orders:

   1. (1)

      The plaintiff’s notice of motion filed on 15 April 2024 is dismissed.

   2. (2)

      The plaintiff is to pay the defendants costs of the motion.

   3. (3)

      The costs referred to in the previous order are not recoverable until the completion of the whole of the proceedings.