Bicheno Investments Pty Ltd v Winterbottom [2017] NSWSC 402

Bicheno Investments Pty Ltd v Winterbottom [2017] NSWSC 402

The amendments to the misleading or deceptive conduct particulars and the arithmetical error claim were allowed because they could be accommodated without the Court determining contested evidentiary or merits questions on the interlocutory application. The proposed new claim about payment of the defendants' legal costs from receivership assets was refused because it would require the plaintiffs to meet multiple asserted bases of entitlement beyond the deed of indemnity, raising too many issues too late for the imminent hearing.

Jurisdiction
Australia
Judgment Date
11 April 2017
Procedural Posture
Application to Amend Commercial List Statement and Commercial List Summons / Procedural Ruling on Notice of Motion Shortly Before an 8 Day Hearing Commencing 1 May 2017
Outcome
Application to amend Commercial List Statement allowed in part.
Legal Topics
['amendment of Pleadings' 'amendment of Particulars' 'imminent Hearing Date' 'receivership Fees' 'misleading or Deceptive Representations' 'costs of Proceedings From Receivership Assets']
['practice and Procedure' 'equity Commercial List'] ['amendment of Pleadings' 'amendment of Particulars' 'imminent Hearing Date' 'receivership Fees' 'misleading or Deceptive Representations' 'costs of Proceedings From Receivership Assets']

Case Brief

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Procedural Posture

Application to Amend Commercial List Statement and Commercial List Summons / Procedural Ruling on Notice of Motion Shortly Before an 8 Day Hearing Commencing 1 May 2017

Legal Issues

  1. 1 ['Whether the plaintiffs should be permitted to amend particulars of the alleged misleading or deceptive representations concerning likely recoveries from the receivership.' 'Whether the plaintiffs should be permitted to add a claim that any success fee was calculated with an arithmetical error.' 'Whether the plaintiffs should be permitted to add a new claim that the defendants wrongfully used proceeds of the receivership to meet their legal costs of the proceedings.' 'Whether issues concerning proposed reliance evidence from Ms Cameron should be determined on the amendment application or by the trial judge.']

Ratio Decidendi

The amendments to the misleading or deceptive conduct particulars and the arithmetical error claim were allowed because they could be accommodated without the Court determining contested evidentiary or merits questions on the interlocutory application. The proposed new claim about payment of the defendants' legal costs from receivership assets was refused because it would require the plaintiffs to meet multiple asserted bases of entitlement beyond the deed of indemnity, raising too many issues too late for the imminent hearing.

Court Disposition

Application to amend Commercial List Statement allowed in part.

Orders

  • ['Amendments to the particulars in paragraph 26 of the proposed Further Amended Commercial List Statement allowed as refined in argument.' 'Proposed addition of paragraphs 32 to 34 of the Commercial List Statement and consequential amendments to the Commercial List Summons allowed.' 'Proposed addition of paragraphs...