Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 777

Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 777

The proposed amendment would confront Mr Drabsch late in the trial with a different and potentially stronger allegation, namely that he personally authorised the expenditure wrongfully. The evidence showed specific prejudice from lost financial, bank and credit card records relevant to defending that allegation, and that prejudice could not be cured by costs or any suggested alternative. The application to amend the defence was therefore refused.

Jurisdiction
Australia
Judgment Date
13 July 1999
Procedural Posture
Application to Amend Defence / Judgment on Application to Amend Defence During Trial
Outcome
Application to amend defence refused.
Legal Topics
['amendment of Pleadings' 'late Application to Amend' 'prejudice' 'procedure Under Scr']
['civil Procedure'] ['amendment of Pleadings' 'late Application to Amend' 'prejudice' 'procedure Under Scr']

Case Brief

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Procedural Posture

Application to Amend Defence / Judgment on Application to Amend Defence During Trial

Legal Issues

  1. 1 ['Whether SGI should be permitted to amend its defence to allege that a payment of an expense incurred by Mr McErlane was authorised by Mr Drabsch rather than by Mr Lepparde.' 'Whether any prejudice to Mr Drabsch from the late amendment could be cured by costs or otherwise.']

Ratio Decidendi

The proposed amendment would confront Mr Drabsch late in the trial with a different and potentially stronger allegation, namely that he personally authorised the expenditure wrongfully. The evidence showed specific prejudice from lost financial, bank and credit card records relevant to defending that allegation, and that prejudice could not be cured by costs or any suggested alternative. The application to amend the defence was therefore refused.

Court Disposition

Application to amend defence refused.

Orders

  • ['The application for amendment of the defence is refused.']