Khattar v AAI Limited [2019] NSWSC 1575

Khattar v AAI Limited [2019] NSWSC 1575

The amendments to plead failure to mitigate and contributory negligence are arguable, important and timely within the context of case management, with no significant prejudice to plaintiffs that could not be remedied by costs. Leave to amend is granted.

Parties
First Plaintiff: Tony Khattar; Second Plaintiff: Raymond Khattar; Third Plaintiff: Miella Khattar; Fourth Plaintiff: Robert Khattar; Fifth Plaintiff: George Khattar; Sixth Plaintiff: Joseph Khattar; Seventh Plaintiff: Peter Khattar; Eighth Plaintiff: Nawal Khattar; First Defendant: AAI Limited; Second Defendant: Hong Youl Son; Third Defendant: Hyo Jung Lee; Fourth Defendant: Irae Land Pty Ltd
Jurisdiction
Australia
Judgment Date
12 November 2019
Procedural Posture
Civil / Interlocutory Application for Leave to Amend Defence
Outcome
Leave granted to amend defence; costs ordered against first, second and third defendants.
Legal Topics
Amendment of Defences, Contributory Negligence, Failure to Mitigate, Case Management
Civil Procedure Amendment of Defences Contributory Negligence Failure to Mitigate Case Management

Case Brief

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Parties

Tony Khattar

First Plaintiff

Raymond Khattar

Second Plaintiff

Miella Khattar

Third Plaintiff

Robert Khattar

Fourth Plaintiff

George Khattar

Fifth Plaintiff

Joseph Khattar

Sixth Plaintiff

Peter Khattar

Seventh Plaintiff

Nawal Khattar

Eighth Plaintiff

AAI Limited

First Defendant

Hong Youl Son

Second Defendant

Hyo Jung Lee

Third Defendant

Irae Land Pty Ltd

Fourth Defendant

Procedural Posture

Civil / Interlocutory Application for Leave to Amend Defence

Legal Issues

  1. 1 Whether leave should be granted to defendants to amend their defences to raise allegations of plaintiffs' failure to mitigate and contributory negligence
  2. 2 Whether the amendments are timely and justified
  3. 3 Whether the amendments cause prejudice or delay to the plaintiffs

Ratio Decidendi

The amendments to plead failure to mitigate and contributory negligence are arguable, important and timely within the context of case management, with no significant prejudice to plaintiffs that could not be remedied by costs. Leave to amend is granted.

Court Disposition

Leave granted to amend defence; costs ordered against first, second and third defendants.

Orders

  • The first, second and third defendants be granted leave to file and serve amended defences in accordance with those exhibited to the affidavit of Paul Garnon dated 3 October 2019, further amended so that paragraph 32(c) of each defence includes the words 'and / or remove straw'.
  • The first, second and third defendants pay the plaintiffs' costs caused and thrown away by the amendments referred to in order 1.