Silver v Dome Resources NL [2006] NSWSC 26

Silver v Dome Resources NL [2006] NSWSC 26

The defendants were not precluded from relying on argument (1) because Fair Choice's non-party status appeared on the pleadings, the point was substantially one of law, and no relevant prejudice was shown; argument (2) could be considered because the plaintiffs conceded it had always been in play in one form or another. Argument (3) could be put against DRD because the defence had long pleaded lack of consideration as to DRD, but the defendants could not amend or take the point against Dome because lack of consideration as against Dome had not been pleaded, the omission appeared deliberate, no explanation was given, and a late amendment would prejudice the plaintiffs and conflict with the...

Jurisdiction
Australia
Judgment Date
03 February 2006
Procedural Posture
Civil Procedure Application in Equity Division Proceedings Concerning Contractual Retirement Payment Claims / Late Application by Defendants, After Close of Evidence and Near the End of Written and Oral Arguments, to Rely on Arguments Not Previously Put and to Further Amend the Defence
Outcome
Rulings made on the defendants' late applications: arguments (1) and (2) permitted to be considered; lack of consideration argument permitted as against DRD but amendment or reliance on that point as against Dome refused.
Legal Topics
['amendment of Defence' 'pleading Points of Law and Material Facts' 'privity of Contract' 'specific Performance' 'consideration' 'prejudice From Late Amendment' 'overriding Purpose']
['civil Procedure' 'contract Law' 'equity'] ['amendment of Defence' 'pleading Points of Law and Material Facts' 'privity of Contract' 'specific Performance' 'consideration' 'prejudice From Late Amendment' 'overriding Purpose']

Case Brief

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Procedural Posture

Civil Procedure Application in Equity Division Proceedings Concerning Contractual Retirement Payment Claims / Late Application by Defendants, After Close of Evidence and Near the End of Written and Oral Arguments, to Rely on Arguments Not Previously Put and to Further Amend the Defence

Legal Issues

  1. 1 ['Whether the defendants should be permitted at a late stage to argue that judgment cannot be entered for Fair Choice because it was not a party to the deed.' "Whether the defendants should be permitted to argue that Silver cannot recover substantial damages because any loss from non-payment to Fair Choice was Fair Choice's loss, not Silver's." 'Whether the defendants should be permitted to argue or amend the defence to allege lack of valuable consideration for specific performance, particularly as against Dome.']

Ratio Decidendi

The defendants were not precluded from relying on argument (1) because Fair Choice's non-party status appeared on the pleadings, the point was substantially one of law, and no relevant prejudice was shown; argument (2) could be considered because the plaintiffs conceded it had always been in play in one form or another. Argument (3) could be put against DRD because the defence had long pleaded lack of consideration as to DRD, but the defendants could not amend or take the point against Dome because lack of consideration as against Dome had not been pleaded, the omission appeared deliberate, no explanation was given, and a late amendment would prejudice the plaintiffs and conflict with the...

Court Disposition

Rulings made on the defendants' late applications: arguments (1) and (2) permitted to be considered; lack of consideration argument permitted as against DRD but amendment or reliance on that point as against Dome refused.

Orders

  • ['Argument (1) should not be precluded.' 'Argument (2) may be taken into account in the final consideration of the case.' 'No amendment to the pleading is needed so far as DRD is concerned and the submission concerning lack of consideration may be put on the present evidence.' 'The application to amend to plead lack...