Lauvan Pty Limited & Anor v Bega & Ors (No 2) [2018] NSWSC 155

Lauvan Pty Limited & Anor v Bega & Ors (No 2) [2018] NSWSC 155

The application to amend the second cross-claim was refused because: (1) the explanation for Mrs Bega's delay was inadequate; (2) allowing amendment would cause significant prejudice to Mr Ciappara as he would be unable to cross-examine witnesses on new allegations unless proceedings were adjourned, which was neither proposed nor financial accommodation for costs offered; (3) such prejudice could not be remedied having regard to the advanced stage of trial and the absence of any remedial conditions.

Parties
First Plaintiff: Lauvan Pty Limited; Second Plaintiff: Mittabell Pty Limited; First Defendant: Helen Bega; Second Defendant: Aidan Bega; Third Defendant: AB Veritas Pty Limited; Second Cross Defendant: Charles Ciappara
Jurisdiction
Australia
Judgment Date
22 February 2018
Procedural Posture
Application to Amend Cross Claim in Supreme Court Civil Proceeding / Ruling on Application During Trial After Evidence Closed
Outcome
Application to amend cross-claim refused
Legal Topics
Amendment of Pleadings, Re Opening Case, Fiduciary Duty, Prejudice From Late Amendment, Costs, Civil Litigation
Civil Procedure Amendment of Pleadings Re Opening Case Fiduciary Duty Prejudice From Late Amendment Costs Civil Litigation

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Parties

Lauvan Pty Limited

First Plaintiff

Mittabell Pty Limited

Second Plaintiff

Helen Bega

First Defendant

Aidan Bega

Second Defendant

AB Veritas Pty Limited

Third Defendant

Charles Ciappara

Second Cross Defendant

Procedural Posture

Application to Amend Cross Claim in Supreme Court Civil Proceeding / Ruling on Application During Trial After Evidence Closed

Legal Issues

  1. 1 Whether to grant leave to amend a cross-claim to add particulars of alleged breaches of fiduciary duty after evidence has closed
  2. 2 Whether there was adequate explanation for the delay in seeking amendment
  3. 3 Whether allowing the amendment would cause material prejudice and injustice to the cross-defendant

Ratio Decidendi

The application to amend the second cross-claim was refused because: (1) the explanation for Mrs Bega's delay was inadequate; (2) allowing amendment would cause significant prejudice to Mr Ciappara as he would be unable to cross-examine witnesses on new allegations unless proceedings were adjourned, which was neither proposed nor financial accommodation for costs offered; (3) such prejudice could not be remedied having regard to the advanced stage of trial and the absence of any remedial conditions.

Court Disposition

Application to amend cross-claim refused

Orders

  • Application to re-open the second cross-claimant's case to amend the second cross-claim is refused.