Bank of Communications Co. Ltd v Delia Sparkes [2021] NSWSC 35

Bank of Communications Co. Ltd v Delia Sparkes [2021] NSWSC 35

The MAE amendments were allowed against Bakewell and Pearce because they did not oppose them and no legitimate forensic prejudice was identified. The proposed amendment bringing a direct claim against HSF was refused because it was brought at a late stage shortly before a substantial fixed hearing, HSF had not had a fair or adequate opportunity to respond, the amendment could require consideration of further claims or defences and possible joinder of a third party which would jeopardise the fixture, and BoC could still bring the claim in separate proceedings.

Jurisdiction
Australia
Judgment Date
01 February 2021
Procedural Posture
Procedural Ruling in Equity Commercial List Proceedings / Pre Trial Applications by the Plaintiffs for Amendment to Commercial List Statements
Outcome
Certain pleading amendments were permitted and the application to amend by making a direct claim against Herbert Smith Freehills was dismissed.
Legal Topics
['amendment of Pleadings' 'commercial List Statements' 'prejudice From Late Amendment' 'joinder or Direct Claim Against Cross Defendant' 'proportionate Liability and Contribution']
['civil Procedure' 'commercial Litigation'] ['amendment of Pleadings' 'commercial List Statements' 'prejudice From Late Amendment' 'joinder or Direct Claim Against Cross Defendant' 'proportionate Liability and Contribution']

Case Brief

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Procedural Posture

Procedural Ruling in Equity Commercial List Proceedings / Pre Trial Applications by the Plaintiffs for Amendment to Commercial List Statements

Legal Issues

  1. 1 ['Whether BoC should be granted leave to amend its Commercial List Statement to incorporate MAE issue amendments against Bakewell and Pearce where they did not oppose the amendments.' 'Whether BoC should be permitted, shortly before a significant fixed hearing, to amend by bringing a direct claim against Herbert Smith Freehills, previously only a cross-defendant in other proceedings.' 'Whether the asserted prejudice to Herbert Smith Freehills from the late direct claim, including possible cross-claims, proportionate liability issues, contribution and diversion of preparation resources, justified refusal of the amendment.']

Ratio Decidendi

The MAE amendments were allowed against Bakewell and Pearce because they did not oppose them and no legitimate forensic prejudice was identified. The proposed amendment bringing a direct claim against HSF was refused because it was brought at a late stage shortly before a substantial fixed hearing, HSF had not had a fair or adequate opportunity to respond, the amendment could require consideration of further claims or defences and possible joinder of a third party which would jeopardise the fixture, and BoC could still bring the claim in separate proceedings.

Court Disposition

Certain pleading amendments were permitted and the application to amend by making a direct claim against Herbert Smith Freehills was dismissed.

Orders

  • ['BoC is given leave to file an Amended Commercial List Statement incorporating the permitted amendments.' "BoC is to pay the defendants' costs thrown away by the permitted amendments." 'The application to amend by making a direct claim against Herbert Smith Freehills in the BoC proceedings is dismissed.' "BoC is to...