Bailey v Bailey [2009] NSWSC 931

Bailey v Bailey [2009] NSWSC 931

Leave to amend was refused to the extent paragraph 55 relied on the 2007 consent orders because the pleading was in effect an allegation that entry into those orders was an admission, and the 2009 consent orders precluded claims based on the 2007 consent orders. Even if not expressly caught by that agreement, the interests of justice did not require allowing a closely allied case after the plaintiffs had abandoned such claims for consideration and used the agreement to resist the defendants' cross-claim.

Jurisdiction
Australia
Judgment Date
08 September 2009
Procedural Posture
Procedure – Application for Leave to File Fourth Further Amended Statement of Claim / Notice of Motion in the Equity Division
Outcome
Leave granted to file the Fourth Further Amended Statement of Claim without the words following "at law" in paragraph 55; plaintiffs to pay the second and third defendants' costs of the motion.
Legal Topics
['amendment of Pleadings' 'consent Orders' 'costs' 'overriding Purpose' 'cross Claim']
['civil Procedure' 'equity'] ['amendment of Pleadings' 'consent Orders' 'costs' 'overriding Purpose' 'cross Claim']

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

Procedure – Application for Leave to File Fourth Further Amended Statement of Claim / Notice of Motion in the Equity Division

Legal Issues

  1. 1 ["Whether the plaintiffs should be granted leave to file a Fourth Further Amended Statement of Claim including paragraph 55's reliance on the 2007 consent orders." 'Whether the 2009 consent orders precluded the plaintiffs from advancing claims or arguments based on the 2007 consent orders.' 'Whether the interests of justice under the Civil Procedure Act 2005 permitted the proposed amendment.']

Ratio Decidendi

Leave to amend was refused to the extent paragraph 55 relied on the 2007 consent orders because the pleading was in effect an allegation that entry into those orders was an admission, and the 2009 consent orders precluded claims based on the 2007 consent orders. Even if not expressly caught by that agreement, the interests of justice did not require allowing a closely allied case after the plaintiffs had abandoned such claims for consideration and used the agreement to resist the defendants' cross-claim.

Court Disposition

Leave granted to file the Fourth Further Amended Statement of Claim without the words following "at law" in paragraph 55; plaintiffs to pay the second and third defendants' costs of the motion.

Orders

  • ['Leave granted to file Fourth Further Amended Statement of Claim without the words following "at law" in paragraph 55.' "Plaintiffs to pay the second and third defendants' costs of the motion."]