Bendigo and Adelaide Bank Limited v Benedetta Russo and Sid Russo; Bendigo and Adelaide Bank Limited v Sid Russo; (No. 3) [2017] NSWSC 566

Bendigo and Adelaide Bank Limited v Benedetta Russo and Sid Russo; Bendigo and Adelaide Bank Limited v Sid Russo; (No. 3) [2017] NSWSC 566

Leave to amend the pleadings should be granted because the proposed amendments were a refinement of the existing pleadings, pleaded facts essentially arising from matters already pleaded and known to both defendants, and would facilitate the just disposition of the proceedings and determination of all real issues. The delay was explained to some extent and was not gross, there was no basis to infer a calculated attempt to circumvent limitation issues, limitation issues should be resolved at the final hearing, and no evidentiary basis showed that leave would impede any cross-claims. The plaintiff should pay both defendants' costs thrown away by the amendments, but because Sid Russo...

Jurisdiction
Australia
Judgment Date
12 May 2017
Procedural Posture
Civil Proceedings Concerning Loans for Investments in a Managed Investment Scheme / Interlocutory Notices of Motion by the Plaintiff Seeking Leave to File and Serve Amended Statements of Claim After Default Judgments Had Been Set Aside
Outcome
Leave to amend the pleadings should be granted; proceedings adjourned for further directions and Short Minutes to be brought in reflecting the judgment, including costs.
Legal Topics
['amendment of Pleadings' 'leave to Amend Statement of Claim' 'overriding Purpose' 'case Management' 'costs of Interlocutory Application' 'costs Thrown Away']
['civil Procedure' 'costs'] ['amendment of Pleadings' 'leave to Amend Statement of Claim' 'overriding Purpose' 'case Management' 'costs of Interlocutory Application' 'costs Thrown Away']

Case Brief

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Procedural Posture

Civil Proceedings Concerning Loans for Investments in a Managed Investment Scheme / Interlocutory Notices of Motion by the Plaintiff Seeking Leave to File and Serve Amended Statements of Claim After Default Judgments Had Been Set Aside

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave pursuant to s. 64 of the Civil Procedure Act 2005 (NSW) to file and serve amended statements of claim.' 'Whether the proposed amendments would facilitate determination of the real issues in the proceedings consistently with ss. 56 to 58 of the Civil Procedure Act 2005 (NSW).' 'Whether limitation issues or alleged prejudice to Sid Russo should prevent leave to amend being granted.' 'What costs orders should be made in relation to costs thrown away and the opposed motion.']

Ratio Decidendi

Leave to amend the pleadings should be granted because the proposed amendments were a refinement of the existing pleadings, pleaded facts essentially arising from matters already pleaded and known to both defendants, and would facilitate the just disposition of the proceedings and determination of all real issues. The delay was explained to some extent and was not gross, there was no basis to infer a calculated attempt to circumvent limitation issues, limitation issues should be resolved at the final hearing, and no evidentiary basis showed that leave would impede any cross-claims. The plaintiff should pay both defendants' costs thrown away by the amendments, but because Sid Russo...

Court Disposition

Leave to amend the pleadings should be granted; proceedings adjourned for further directions and Short Minutes to be brought in reflecting the judgment, including costs.

Orders

  • ['The proceedings are adjourned for further directions before me on 16 May 2017 at 9:30am.' 'The parties are to bring in Short Minutes on that day, reflecting the conclusions that I have reached in this judgment (including those as to costs) and setting out a timetable for the completion of all remaining...