JKAM Investments Pty Ltd v Damien [2017] NSWSC 1182

JKAM Investments Pty Ltd v Damien [2017] NSWSC 1182

The court allowed the amendment and adjournment because refusing would generate a greater injustice by forever preventing JKAM from raising a possibly meritorious misleading and deceptive conduct claim, especially given that the lateness resulted from recent counsel's reassessment and neither party had adequately considered the agreed termination of contract's impact. Prejudice to Mr Damien could be addressed by a costs order and further procedural directions; any issue of estoppel could be addressed at trial.

Parties
Plaintiff/cross Defendant: JKAM Investments ACN 159 084 018; First Defendant/cross Claimant: Karl Damien; Second Defendant: Champion Homes ACN 082 497 247
Jurisdiction
Australia
Judgment Date
04 September 2017
Procedural Posture
Application to Adjourn and Amend Pleadings / Ruling on Amendment and Adjournment Application
Outcome
Amendment and adjournment granted; costs ordered against plaintiff
Legal Topics
Amendment of Pleadings, Adjournment, Costs, Misleading and Deceptive Conduct, Estoppel
Civil Procedure Amendment of Pleadings Adjournment Costs Misleading and Deceptive Conduct Estoppel

Case Brief

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Parties

JKAM Investments ACN 159 084 018

Plaintiff/cross Defendant

Karl Damien

First Defendant/cross Claimant

Champion Homes ACN 082 497 247

Second Defendant

Procedural Posture

Application to Adjourn and Amend Pleadings / Ruling on Amendment and Adjournment Application

Legal Issues

  1. 1 Whether to grant leave to amend the statement of claim to add a misleading and deceptive conduct claim
  2. 2 Whether to adjourn the hearing
  3. 3 Whether prejudice, delay, or estoppel reasons should prevent the amendment

Ratio Decidendi

The court allowed the amendment and adjournment because refusing would generate a greater injustice by forever preventing JKAM from raising a possibly meritorious misleading and deceptive conduct claim, especially given that the lateness resulted from recent counsel's reassessment and neither party had adequately considered the agreed termination of contract's impact. Prejudice to Mr Damien could be addressed by a costs order and further procedural directions; any issue of estoppel could be addressed at trial.

Court Disposition

Amendment and adjournment granted; costs ordered against plaintiff

Orders

  • Leave granted to plaintiff to file and serve further amended statement of claim by 25 September 2017
  • Defence and any amended cross-claim to be filed and served by 16 October 2017