Sturesteps v Khoury (No 3) [2017] NSWSC 1541

Sturesteps v Khoury (No 3) [2017] NSWSC 1541

The defendants did not demonstrate that the extensive proposed amendments to the defence were necessary to determine the real questions in dispute. On the material considered, the amendments did not introduce substantive additional defences but largely rewrote and expanded the existing pleading, added expression and legal contentions, and risked making the proceedings more complicated and the factual issues harder to identify. The absence of significant delay or prejudice did not itself entitle the defendants to amend under the general power. The defendants' motion was therefore dismissed, while the plaintiffs' particulars motion was adjourned with timetable directions.

Jurisdiction
Australia
Judgment Date
10 November 2017
Procedural Posture
Interlocutory Applications in Equity Applications List Concerning Amendment of Defence and Particulars / Defendants' Notice of Motion to Amend Defence and Plaintiffs' Notice of Motion for Particulars/timetable
Outcome
Defendants' motion dismissed and plaintiffs' motion adjourned.
Legal Topics
['amendment of Pleadings' 'prejudice and Delay' 'particulars' 'extension of Limitation Period for Mistake' 'onus Under Limitation Act 1969 (nsw) S 56']
['civil Procedure' 'limitation of Actions'] ['amendment of Pleadings' 'prejudice and Delay' 'particulars' 'extension of Limitation Period for Mistake' 'onus Under Limitation Act 1969 (nsw) S 56']

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Procedural Posture

Interlocutory Applications in Equity Applications List Concerning Amendment of Defence and Particulars / Defendants' Notice of Motion to Amend Defence and Plaintiffs' Notice of Motion for Particulars/timetable

Legal Issues

  1. 1 ['Whether the defendants should be permitted to file an extensively amended defence under Civil Procedure Act 2005 (NSW) s 64.' 'Whether the proposed amendments were necessary to expose the real factual issues in the proceedings or merely expanded expression and legal contentions.' 'Whether prejudice or delay justified refusing amendment.' "How the plaintiffs' request for particulars should be managed pending any further amendment and reply." 'Whether the existing pleading of the limitation defence concerning mistake under Limitation Act 1969 (NSW) s 56 may be misconceived.']

Ratio Decidendi

The defendants did not demonstrate that the extensive proposed amendments to the defence were necessary to determine the real questions in dispute. On the material considered, the amendments did not introduce substantive additional defences but largely rewrote and expanded the existing pleading, added expression and legal contentions, and risked making the proceedings more complicated and the factual issues harder to identify. The absence of significant delay or prejudice did not itself entitle the defendants to amend under the general power. The defendants' motion was therefore dismissed, while the plaintiffs' particulars motion was adjourned with timetable directions.

Court Disposition

Defendants' motion dismissed and plaintiffs' motion adjourned.

Orders

  • ['Orders made in accordance with the timetable set out in the Short Minutes of Order initialled and dated by the Court, as amended.' "Defendants' Notice of Motion of 14 August 2017 dismissed." "Defendants ordered to pay the plaintiffs' costs of that Motion." "Plaintiffs' Notice of Motion of 13 July 2017 adjourned to...