Chelmer NZ Ltd v Financial and Energy Exchange Ltd; No 1 [2019] NSWDC 25

Chelmer NZ Ltd v Financial and Energy Exchange Ltd; No 1 [2019] NSWDC 25

Leave to rely on the proposed Amended Cross-Claim was refused because, although some amendments reformulated existing allegations, the proposed claims in deceit and fraudulent concealment were new causes of action advanced very late in the hearing. FEX had relevant documents since 2015 and could have advanced the case earlier. The new allegations of fraud or deceit would require procedural fairness, further opportunity for Chelmer to address them, and would create prejudice, delay, additional expense and fragmentation inconsistent with the dictates of justice and the overriding purpose of the Civil Procedure Act 2005 (NSW).

Jurisdiction
Australia
Judgment Date
22 February 2019
Procedural Posture
Notice of Motion in Civil Proceedings Seeking to Rely on an Amended Cross Claim / During Hearing of the Substantive Matter; Motion Dismissed With Reasons Delivered Later
Outcome
The notice of motion filed on 9 August 2017 was dismissed; costs were reserved for determination at the conclusion of the substantive proceedings.
Legal Topics
['amendment of Pleadings' 'delay' 'cross Claim' 'fraud and Deceit Allegations' 'misleading or Deceptive Conduct']
['civil Procedure'] ['amendment of Pleadings' 'delay' 'cross Claim' 'fraud and Deceit Allegations' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Notice of Motion in Civil Proceedings Seeking to Rely on an Amended Cross Claim / During Hearing of the Substantive Matter; Motion Dismissed With Reasons Delivered Later

Legal Issues

  1. 1 ['Whether the Defendant/Cross Claimant should be granted leave to rely on a proposed Amended Cross-Claim filed on 9 August 2017.' 'Whether the proposed amendments introduced new causes of action for deceit and fraudulent concealment at a late stage of the hearing.' 'Whether the late amendments would cause prejudice, delay, additional expense or procedural unfairness to the Plaintiff/Cross Defendant.']

Ratio Decidendi

Leave to rely on the proposed Amended Cross-Claim was refused because, although some amendments reformulated existing allegations, the proposed claims in deceit and fraudulent concealment were new causes of action advanced very late in the hearing. FEX had relevant documents since 2015 and could have advanced the case earlier. The new allegations of fraud or deceit would require procedural fairness, further opportunity for Chelmer to address them, and would create prejudice, delay, additional expense and fragmentation inconsistent with the dictates of justice and the overriding purpose of the Civil Procedure Act 2005 (NSW).

Court Disposition

The notice of motion filed on 9 August 2017 was dismissed; costs were reserved for determination at the conclusion of the substantive proceedings.

Orders

  • ['The notice of motion filed on 9 August 2017 is dismissed.' 'Costs were reserved for determination at the conclusion of the substantive proceedings.']