Barescape Pty Ltd & Anor v Bacchus Holdings Pty Ltd & Anor (No 5) [2011] NSWSC 1307

Barescape Pty Ltd & Anor v Bacchus Holdings Pty Ltd & Anor (No 5) [2011] NSWSC 1307

Leave to amend was granted because the amendment reflected the factual basis on which the parties had conducted submissions, affidavit evidence and cross-examination: the extent of information disclosed by Mr Ventura and Mr Higgins' alleged consent to involvement in Longworth House had always been in issue, and the Cross-Claimant had not been deprived of an opportunity to test those matters. Leave to tender the additional documents was granted because the delays and procedural deficiencies did not establish substantive prejudice that could not be addressed by costs, the documents were relevant to determination of the Cross-Claim on its merits, and most challenged documents were...

Jurisdiction
Australia
Judgment Date
02 November 2011
Procedural Posture
Interlocutory Applications / Applications for Leave to Amend Defence and for Leave to Tender Additional Documents During Hearing
Outcome
Application for leave to amend Defence granted; application for leave for Cross-Claimant to tender additional documents granted, subject to specific evidentiary rulings.
Legal Topics
['amendment of Pleadings' 'late Tender of Documents' 'court Book Compliance' 'authenticity of Documents' 'business Records' 'discretionary Exclusion of Evidence' 'fiduciary Duty' 'ratification and Informed Consent']
['practice and Procedure' 'evidence' 'equity'] ['amendment of Pleadings' 'late Tender of Documents' 'court Book Compliance' 'authenticity of Documents' 'business Records' 'discretionary Exclusion of Evidence' 'fiduciary Duty' 'ratification and Informed Consent']

Case Brief

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Procedural Posture

Interlocutory Applications / Applications for Leave to Amend Defence and for Leave to Tender Additional Documents During Hearing

Legal Issues

  1. 1 ['Whether the Cross-Defendants should be granted leave to amend their Defence to the Amended Cross-Claim to plead ratification, waiver, excuse or informed consent.' 'Whether the Cross-Claimant should be granted leave to tender additional documents not included in the original Court Book.' 'Whether particular documents objected to by the Cross-Defendants were admissible, including on grounds of authenticity, relevance, business records and discretionary exclusion.']

Ratio Decidendi

Leave to amend was granted because the amendment reflected the factual basis on which the parties had conducted submissions, affidavit evidence and cross-examination: the extent of information disclosed by Mr Ventura and Mr Higgins' alleged consent to involvement in Longworth House had always been in issue, and the Cross-Claimant had not been deprived of an opportunity to test those matters. Leave to tender the additional documents was granted because the delays and procedural deficiencies did not establish substantive prejudice that could not be addressed by costs, the documents were relevant to determination of the Cross-Claim on its merits, and most challenged documents were...

Court Disposition

Application for leave to amend Defence granted; application for leave for Cross-Claimant to tender additional documents granted, subject to specific evidentiary rulings.

Orders

  • ['Leave granted to the Cross-Defendants to file an Amended Defence to the Amended Statement of Cross-Claim in the form marked MFI 23, on the basis that the Cross-Defendants pay any costs thrown away by the amendment.' "Leave granted to tender Volume 12 of the Court Book and the folder labelled Cross-Claimant's...