The Berry Rural Co Operative Society Ltd v Sepak Industries Pty Ltd (No 3) [2018] NSWSC 1751

The Berry Rural Co Operative Society Ltd v Sepak Industries Pty Ltd (No 3) [2018] NSWSC 1751

Although the plaintiff's solicitor should have notified Sepak and the Court once he concluded that the plaintiff's evidence in chief was deficient and required extensive supplementation, the justice of the case required granting leave because the predicament was again caused by the poor judgment of the plaintiff's legal advisers rather than the plaintiff itself, and refusal of leave would likely cause the plaintiff's claim to fail. The indulgence was therefore granted only on strict terms, including indemnity costs for Sepak's wasted evidence preparation and a show cause direction concerning the solicitor's liability for those costs.

Jurisdiction
Australia
Judgment Date
15 November 2018
Procedural Posture
Equity Commercial List Procedural Ruling Concerning Leave to Amend Pleadings and Rely on Further Evidence / Interlocutory Notice of Motion Filed 12 October 2018 After Directions
Outcome
Plaintiff granted leave to rely on further evidence and to amend pleadings on strict terms including costs.
Legal Topics
['amendment of Pleadings' 'further Evidence' 'guillotine Order' 'costs' "lawyers' Liability for Costs" 'commercial List Case Management']
['civil Procedure' 'commercial Litigation' 'professions and Trades'] ['amendment of Pleadings' 'further Evidence' 'guillotine Order' 'costs' "lawyers' Liability for Costs" 'commercial List Case Management']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Commercial List Procedural Ruling Concerning Leave to Amend Pleadings and Rely on Further Evidence / Interlocutory Notice of Motion Filed 12 October 2018 After Directions

Legal Issues

  1. 1 ['Whether the plaintiff should have leave to rely upon extensive further evidence served after the defendants served their evidence.' 'Whether the plaintiff should have leave to amend its pleadings.' "Whether the plaintiff should pay the defendants' costs thrown away by the grant of leave, and whether the plaintiff's solicitor should show cause why he should not pay those costs to the plaintiff."]

Ratio Decidendi

Although the plaintiff's solicitor should have notified Sepak and the Court once he concluded that the plaintiff's evidence in chief was deficient and required extensive supplementation, the justice of the case required granting leave because the predicament was again caused by the poor judgment of the plaintiff's legal advisers rather than the plaintiff itself, and refusal of leave would likely cause the plaintiff's claim to fail. The indulgence was therefore granted only on strict terms, including indemnity costs for Sepak's wasted evidence preparation and a show cause direction concerning the solicitor's liability for those costs.

Court Disposition

Plaintiff granted leave to rely on further evidence and to amend pleadings on strict terms including costs.

Orders

  • ['The Co Operative is to pay all of the costs that Sepak incurred in preparing the evidence it served on 3 October 2018, on an indemnity basis.' 'Those costs are to be specified as a gross sum under s 98(4) of the Civil Procedure Act 2005 (NSW) and paid forthwith, with submissions to be heard about the gross sum.'...