Fay v Moramba Services Pty Ltd (No 3) [2008] NSWSC 1037

Fay v Moramba Services Pty Ltd (No 3) [2008] NSWSC 1037

Leave to amend was granted in respect of certain paragraphs of the proposed Second Further Amended Statement of Claim where the proposed amendments raised arguable breaches of duty and prejudice to the defendants could be addressed by adjournment and costs orders. Leave to amend was refused for paragraphs that would introduce issues arising after most oral evidence was complete, as such amendments would be undesirable and the pleaded breaches unlikely to be sustained.

Jurisdiction
Australia
Judgment Date
17 September 2008
Procedural Posture
Application to Amend Pleading / Interlocutory Ruling
Outcome
Leave granted in part to amend Statement of Claim; refused in part.
Legal Topics
['amendment of Pleadings' 'breach of Trust' 'testamentary Trusts' 'costs' 'adjournments']
['equity' 'civil Procedure'] ['amendment of Pleadings' 'breach of Trust' 'testamentary Trusts' 'costs' 'adjournments']

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

Application to Amend Pleading / Interlocutory Ruling

Legal Issues

  1. 1 ['Whether leave should be granted to amend the Further Amended Statement of Claim to include new allegations of breach of duty by trustees' 'Whether allowing such amendments at a late stage would cause incurable prejudice to the defendants' 'Whether amendments alleging post-part-heard conduct are desirable to introduce after most of the trial has been completed']

Ratio Decidendi

Leave to amend was granted in respect of certain paragraphs of the proposed Second Further Amended Statement of Claim where the proposed amendments raised arguable breaches of duty and prejudice to the defendants could be addressed by adjournment and costs orders. Leave to amend was refused for paragraphs that would introduce issues arising after most oral evidence was complete, as such amendments would be undesirable and the pleaded breaches unlikely to be sustained.

Court Disposition

Leave granted in part to amend Statement of Claim; refused in part.

Orders

  • ['Leave granted to plaintiffs to amend their Statement of Claim in the form of the Draft Second Further Amended Statement of Claim, subject to specified textual changes and excluding proposed paragraphs 27AB and 27AC.' 'Plaintiffs to file and serve Second Further Amended Statement of Claim reflecting amendments by...