Yusen Daly Smith International Pty Ltd v Smith [2000] NSWSC 498

Yusen Daly Smith International Pty Ltd v Smith [2000] NSWSC 498

The application to amend the cross claim to plead a claim under the 1996 assignment was refused because the trial was not conducted on that basis, YDSI had deliberately run its case on the footing that no such claim was made, relevant factual exploration of ANZ Bank records was not undertaken, the prejudice could not be remedied by costs, reopening evidence might be necessary, and finality was important in long-running litigation. The existing subrogation claim for $27,787.88 failed. Relief for guarantee fees was limited to fees paid from April 1994 onwards because no relevant earlier guarantee was in evidence and the Court would not infer its existence or terms.

Jurisdiction
Australia
Judgment Date
08 June 2000
Procedural Posture
Equity Division Proceedings Concerning an Application to Amend a Cross Claim / After Earlier Judgment, With Further Submissions on Outstanding Matters
Outcome
Application to amend refused; Smith's claim for $27,787.88 failed; guarantee fee relief limited to $9,937.50; receiver and costs issues left for later determination.
Legal Topics
['amendment of Cross Claim After Judgment' 'prejudice Not Remediable by Costs' 'assignment of Mortgage Debenture' 'subrogation' 'guarantee Fees']
['civil Procedure' 'equity' 'secured Transactions'] ['amendment of Cross Claim After Judgment' 'prejudice Not Remediable by Costs' 'assignment of Mortgage Debenture' 'subrogation' 'guarantee Fees']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning an Application to Amend a Cross Claim / After Earlier Judgment, With Further Submissions on Outstanding Matters

Legal Issues

  1. 1 ['Whether Smith should be permitted after judgment to amend his cross claim to plead a claim for $27,787.88 under the 1996 assignment rather than by subrogation.' "Whether Smith's existing claim for $27,787.88 was made out." 'Whether relief concerning guarantee fees should extend to fees paid before April 1994.']

Ratio Decidendi

The application to amend the cross claim to plead a claim under the 1996 assignment was refused because the trial was not conducted on that basis, YDSI had deliberately run its case on the footing that no such claim was made, relevant factual exploration of ANZ Bank records was not undertaken, the prejudice could not be remedied by costs, reopening evidence might be necessary, and finality was important in long-running litigation. The existing subrogation claim for $27,787.88 failed. Relief for guarantee fees was limited to fees paid from April 1994 onwards because no relevant earlier guarantee was in evidence and the Court would not infer its existence or terms.

Court Disposition

Application to amend refused; Smith's claim for $27,787.88 failed; guarantee fee relief limited to $9,937.50; receiver and costs issues left for later determination.

Orders

  • ['Application to amend refused.' 'Filing of the amended cross claim containing paragraphs 47 to 50 only to be allowed.' 'Short minutes to be brought in reflecting the conclusions in the judgment and reasons.']