Case: Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268
Outcome: cited
The effect of this rule in my view is that a party must specifically obtain the leave of the Court to withdraw an admission to which O 22 r 4(2) applies. In this case no such specific leave has been obtained by the respondents. Mr Perran SC relies on the decision of Sackville J in Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268 as authority that no leave ought be granted to withdraw admissions in this case. The primary complaint of the applicants in this context relates to paras 5 and 6 of the second further amended defence. 10 On a simple comparison of the two versions of paras 5 and 6, it appears clear that the respondent has, in amending its defence, withdrawn a number of admissions. The relevant paragraphs are as follows: Paragraphs 5 and 6 in the further amended defence filed by the respondent on 28 September 2007 5. With respect to paragraph 24 of the amended statement of claim the respondents: (a) admit that the first respondent and the first applicant agreed as to the amount of the Agreed 1998 Profit Shortfall Amount ( as defined in the amended statement of claim) ; (b) deny that the second respondent agreed to the Agreed 1998 Profit Shortfall Amount on the basis that the second respondent was not present during discussions about the Agreed 1998 Profit Shortfall Amount; (c) admit that the conversation particularised in paragraph 24(a) took place; (d) admit the existence of the letter particularised in paragraph 24(b) , but object thereto on the basis that the letter is not a material fact relevant to the alleged agreement . 6. With respect to paragraph 25 of the amended statement of claim the respondents: (a) admit the Agreed 1998 Profit Shortfall Amount appeared in the books of account of Forbes Australia as a prepayment of rent payable under the Lot 8 Lease; (b) deny that Agreed 1998 Profit Shortfall Amount represented a true entry in the books of account of Forbes Australia on the basis no shortfall existed despite the matters set out herein such that no amount was truly owing pursuant to the agreement referred to therein; (c) further and alternatively- (i) repeat the rely on the matters pleaded in paragraphs 4C and 4D herein; (ii) plead that, in the premises, no obligation arose under the Forbes Guarantee or under the Forbes 8 Lease Guarantee, as alleged or at all. Paragraphs 5 and 6 in the second further amended further amended defence filed 19 October 2007 5. With respect to paragraph 24 of the amended statement of claim the respondents: (a) deny that there was any agreement as to the 1998 profit shortfall "pursuant to the Forbes Guarantee and the Forbes Lot 8 Lease Guarantee", as those agreements did not provide for calculation of, or agreement to, any profit shortfall for the 1998 calendar year or otherwise; admit that the first respondent and the first applicant agreed as to the amount of the Agreed 1998 Profit Shortfall Amount (as defined in the amended statement of claim) ; (b) deny that the second respondent agreed to the Agreed 1998 Profit Shortfall Amount on the basis that the second respondent was not present during discussions about the Agreed 1998 Profit Shortfall Amount; (c) admit that the conversation particularised in paragraph 24(a) took place , but plead that any such agreement as alleged therein is to be set aside because- (i) the first applicant caused the amount of the sales of Forbes Australia in the 1998 calendar year to be reduced by approximately $418,000 by the issue of "credit notes", which ought to have been recorded as sales by Forbes Australia for the 1998 calendar year, or included by way adjustment to the profit result for the 1998 calendar year; (ii) the first applicant knew, or ought to have known, of the matters pleaded in subparagraph (i) above; (iii) by reason of the first respondent's agreement in the course of the conversation that the amount of the shortfall of the Profit Guarantee for the 1998 calendar year was $127,284.00, when in truth and in fact there was no shortfall of the Profit Guarantee for the 1998 calendar year, the first applicant knew, or ought to have known, that the first applicant was unaware of the matters pleaded in subparagraph (i) above; (iv) in the premises, it would be unconscionable to permit any agreement to create any liability in respect of the alleged, and non-existent, 1998 profit shortfall; (v) further and alternatively- (A) Forbes Australia failed, in contravention of s 286 of the Corporations Law and, subsequently, s 286 of the Corporations Act , properly and adequately to maintain its financial records for the 1998 calendar year; (B) accordingly, the respondents have been denied any proper opportunity to assess- (1) the validity and accuracy of any accounts of Forbes Australia for the 1998 calendar year; or (2) the full amount of the sales made by Forbes Australia for the 1998 calendar year; (C) the present proceeding is, accordingly, an abuse of process; (d) admit the existence of the letter particularised in paragraph 24(b), but object thereto on the basis that the letter is not a material fact relevant to the alleged agreement. 6. With respect to paragraph 25 of the amended statement of claim the respondents: (a) do not admit the Agreed 1998 Profit Shortfall Amount appeared in the books of account of Forbes Australia as a prepayment of rent payable under the Lot 8 Lease , because- (i) Forbes Australia failed, in contravention of s 286 of the Corporations Law and, subsequently, s 286 of the Corporations Act , properly and adequately to maintain its financial records for the 1999 calendar year; (ii) accordingly, the respondents have been denied any proper opportunity to assess whether or not the alleged entry was a proper entry in Forbes Australia's book of accounts; (b) deny , in any event, that Agreed 1998 Profit Shortfall Amount represented a true entry in the books of account of Forbes Australia on the basis no shortfall existed despite the matters set out herein such and that , accordingly, no amount was truly owing pursuant to the agreement referred to therein; (c) further and alternatively- (i) repeat and rely on the matters pleaded in paragraphs 4B, 4C, 4D, 4F and 5 herein; (ii) plead that, in the premises, no obligation arose under the Forbes Guarantee or under the Lot 8 Lease Guarantee, as alleged or at all. 11 The basis of the applicants' complaint is most obviously illustrated by a simple comparison between the two versions of these paragraphs in that, for example, whereas in the further amended defence filed 28 September 2007 in each of paras 5(a) and 6(a) the respondent "admits" the fact contained therein, in the second further amended defence filed 19 October 2007 in each of paras 5(a) and 6(a) the respondent "denies" (para 5(a)) or "does not admit" (para 6(a)) the relevant facts. Prima facie , this does appear to constitute a withdrawal of admissions.