Silver v Dome Resources NL [2006] NSWSC 189

Silver v Dome Resources NL [2006] NSWSC 189

The amendments were allowed because the plaintiffs' earlier course was shaped by the defendants' failure to raise the privity argument until late in the case, the representations now relied on were contained in the deeds sued upon and were not new material to the case, the plaintiffs would not add evidence, and any prejudice to the defendants could be met by limited further cross-examination of Mr Silver by video link and by an order for costs thrown away.

Jurisdiction
Australia
Judgment Date
06 March 2006
Procedural Posture
Equity Proceeding Concerning Amendment of Pleadings / Plaintiffs' Application to Reinstate Abandoned Causes of Action and Further Amend the Amended Statement of Claim
Outcome
Reversion to abandoned causes of action and further amendment of statement of claim allowed.
Legal Topics
['amendment of Pleadings' 'late Amendment' 'abandoned Causes of Action' 'privity Argument' 'estoppel' 'trade Practices Act Representations' 'costs Thrown Away']
['civil Procedure' 'equity' 'trade Practices'] ['amendment of Pleadings' 'late Amendment' 'abandoned Causes of Action' 'privity Argument' 'estoppel' 'trade Practices Act Representations' 'costs Thrown Away']

Case Brief

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Procedural Posture

Equity Proceeding Concerning Amendment of Pleadings / Plaintiffs' Application to Reinstate Abandoned Causes of Action and Further Amend the Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the plaintiffs should be allowed to reinstate three causes of action abandoned during the trial, one in estoppel and two under the Trade Practices Act 1974 (Cth).' 'Whether the plaintiffs should be allowed to further amend the amended statement of claim to rely on representations in the deeds themselves rather than earlier oral representations.' 'Whether the dictates of justice were best satisfied by allowing or refusing the late amendments.']

Ratio Decidendi

The amendments were allowed because the plaintiffs' earlier course was shaped by the defendants' failure to raise the privity argument until late in the case, the representations now relied on were contained in the deeds sued upon and were not new material to the case, the plaintiffs would not add evidence, and any prejudice to the defendants could be met by limited further cross-examination of Mr Silver by video link and by an order for costs thrown away.

Court Disposition

Reversion to abandoned causes of action and further amendment of statement of claim allowed.

Orders

  • ['Leave granted to the plaintiffs to file in court a further amended statement of claim.' 'An affidavit verifying the further amended statement of claim should be brought forward in due course.' "The plaintiffs are to pay the defendants' costs thrown away by the amendment."]