Coram: Huggins and McMullin, JJ.A. and Garcia, J.
Date of Judgment: 8 October 1980
1. This is an application to amend a notice of appeal. In respect of some of the grounds it is desired to amend, the amendments arenot opposed, but as to two of them (Grounds 4 and 5) they are opposed. The original Ground 4 attacked the refusal of leave to amendthe Counterclaim. It was not very happily worded, but in effect it complained that the judge had refused leave to amend the Counterclaimon the ground that the Claimant had no evidence by which he could possibly prove the fraud which he sought to allege by the amendment.Leave to make the amendment had previously been refused, but the judge had then indicated that, if the evidence adduced at the trialcould arguably establish fraud, application for leave to amend might be renewed. Mr. Bernacchi appears to say that by the proposedparagraphs (a), (b) and (c) he is not seeking to introduce any new matter but merely to give particulars of what is already pleaded.The new ground, as I understand it, suggests that the judge held that the agreed facts were not material to a consideration of whetherthere was evidence of fraud. In my judgment that is a wrong premiss: the learned judge never so held. The rest of paragraph (a) ofthe suggested amended ground, in my view, does not add anything to the existing ground. Paragraph (b) is an elaboration of the originalGround 4 and it seeks to introduce by reference the amendment which was refused. In my view, apart from the wrong premiss in paragraph(a), paragraphs (a), (b) and (c) really add nothing to the original ground and they should not be allowed.
2. Paragraph (d) raises an entirely different point. Mr. Bernacchi says that the judge found equitable fraud but that in so findinghe held to be immaterial the similar transactions of which evidence was given in the Agreed Facts. It is now sought to uphold thefinding of equitable fraud on this further ground, that those transactions themselves disclosed fraud. In my view it is not fairlyarguable that the Agreed Facts are in any way indicative of fraud. Therefore, I would refuse leave to amend paragraph 4.
3. The new paragraph 5 raises a point not pleaded, not opened and not investigated. I think it is too late to raise this issue and Iwould refuse leave to amend paragraph 5.
4. I agree and I do not wish to add anything further.
5. I also agree.
8th October 1980