Ferella v Otvosi [2005] NSWSC 678

Ferella v Otvosi [2005] NSWSC 678

Order (1) of the consent orders was construed distributively: as to prayers 1 and 2 of the further amended summons, it followed a hearing on the merits and could not be reopened; as to the subsequent prayers, which had not been heard on the merits, the dismissal was governed by Part 40 r 8 of the Supreme Court Rules 1970 and did not preclude the plaintiffs from again raising those claims. The existing cross claim to enforce the restrictive covenant also carried with it the statutory ability under s 89(2) of the Conveyancing Act 1919 to seek modification of the covenant, and any prejudice from the late amendments could be met by costs. The amendments were therefore allowed.

Jurisdiction
Australia
Judgment Date
05 July 2005
Procedural Posture
Equity Proceedings Concerning Enforcement and Modification of a Restrictive Covenant / Notice of Motion to Amend Points of Defence to Amended Points of Cross Claim Before Trial
Outcome
Amendment allowed of points of defence to amended points of cross claim.
Legal Topics
['amendment of Pleadings' 'restrictive Covenants' 'dismissal of Proceedings' 'res Judicata' 'issue Estoppel' 'anshun Estoppel' 'supreme Court Rules']
['civil Procedure' 'equity' 'property Law'] ['amendment of Pleadings' 'restrictive Covenants' 'dismissal of Proceedings' 'res Judicata' 'issue Estoppel' 'anshun Estoppel' 'supreme Court Rules']

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 Proceedings Concerning Enforcement and Modification of a Restrictive Covenant / Notice of Motion to Amend Points of Defence to Amended Points of Cross Claim Before Trial

Legal Issues

  1. 1 ["Whether proposed amendments to the points of defence to the amended cross claim were precluded by res judicata, issue estoppel, Anshun estoppel, or the consent orders dismissing the plaintiffs' proceedings." 'Whether Part 40 r 8 of the Supreme Court Rules 1970 meant that dismissal of untried claims did not prevent the same relief being claimed again.' 'Whether s 89(2) of the Conveyancing Act 1919 permitted the plaintiffs, as defendants to the cross claim, to seek modification of the restrictive covenant in those proceedings.' 'Whether the defendants would suffer prejudice not compensable by costs if the amendments were allowed.']

Ratio Decidendi

Order (1) of the consent orders was construed distributively: as to prayers 1 and 2 of the further amended summons, it followed a hearing on the merits and could not be reopened; as to the subsequent prayers, which had not been heard on the merits, the dismissal was governed by Part 40 r 8 of the Supreme Court Rules 1970 and did not preclude the plaintiffs from again raising those claims. The existing cross claim to enforce the restrictive covenant also carried with it the statutory ability under s 89(2) of the Conveyancing Act 1919 to seek modification of the covenant, and any prejudice from the late amendments could be met by costs. The amendments were therefore allowed.

Court Disposition

Amendment allowed of points of defence to amended points of cross claim.

Orders

  • ['The plaintiffs were allowed to amend the defence to the cross claim as sought in the notice of motion.' "The defendants were to pay the plaintiffs' costs of the motion." "The defendants' application under Part 40 r 8(2) for a stay was stood over to the commencement of the trial."]