Dimarti v Westpac Banking Corporation [2020] NSWSC 1342

Dimarti v Westpac Banking Corporation [2020] NSWSC 1342

The Court held that the proposed claim based on the allegation that the fraud was reported on 4 October 2011 arose from the same or substantially the same facts as the existing pleaded claim, so s 65(2)(c) of the Civil Procedure Act 2005 (NSW) permitted amendment despite any limitation issue. Although the proposed FASOC inadequately pleaded fraud, any Barnes v Addy claim, negligence, damage and personal injury matters, the defects were capable of being addressed and it was not appropriate at this interlocutory stage to preclude the plaintiff from advancing an arguable amended case. Leave was therefore granted on strict terms, including a deadline, compliance with UCPR r 15.12 if personal...

Jurisdiction
Australia
Judgment Date
02 October 2020
Procedural Posture
Civil Proceedings Concerning Amendment of Pleadings in Claims Alleging Fraud, Knowing Assistance and Negligence Against a Bank / Interlocutory Motion for Leave to Amend Statement of Claim
Outcome
Leave to amend granted on terms; plaintiff to pay defendant's costs thrown away on an indemnity basis.
Legal Topics
['amendment of Pleadings After Expiry of Limitation Period' 'fraud Pleading and Particulars' 'barnes V Addy Knowing Assistance' 'negligence by Bank in Processing Discharge Documents' 'overriding Purpose and Case Management' 'personal Injury Pleading Requirements']
['civil Procedure' 'limitation of Actions' 'equity' 'negligence' 'personal Injury'] ['amendment of Pleadings After Expiry of Limitation Period' 'fraud Pleading and Particulars' 'barnes V Addy Knowing Assistance' 'negligence by Bank in Processing Discharge Documents' 'overriding Purpose and Case Management' 'personal Injury Pleading Requirements']

Case Brief

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Procedural Posture

Civil Proceedings Concerning Amendment of Pleadings in Claims Alleging Fraud, Knowing Assistance and Negligence Against a Bank / Interlocutory Motion for Leave to Amend Statement of Claim

Legal Issues

  1. 1 ['Whether leave should be granted to amend the Statement of Claim to include a claim based on an allegation that the fraud was reported on 4 October 2011 after the alleged limitation period had expired.' 'Whether the proposed new cause of action arose from the same or substantially the same facts as the existing cause of action for the purposes of s 65(2)(c) of the Civil Procedure Act 2005 (NSW).' 'Whether the proposed Barnes v Addy knowing assistance claim was properly pleaded and particularised.' 'Whether the proposed negligence claim was so defective, including by reason of remoteness or lack of damage, that leave to amend should be refused.' 'Whether the plaintiff should be permitted to re-agitate or plead psychiatric injury and personal injury damages despite earlier consent orders and non-compliance with UCPR r 15.12.' 'What costs and case management orders should follow if leave to amend were granted.']

Ratio Decidendi

The Court held that the proposed claim based on the allegation that the fraud was reported on 4 October 2011 arose from the same or substantially the same facts as the existing pleaded claim, so s 65(2)(c) of the Civil Procedure Act 2005 (NSW) permitted amendment despite any limitation issue. Although the proposed FASOC inadequately pleaded fraud, any Barnes v Addy claim, negligence, damage and personal injury matters, the defects were capable of being addressed and it was not appropriate at this interlocutory stage to preclude the plaintiff from advancing an arguable amended case. Leave was therefore granted on strict terms, including a deadline, compliance with UCPR r 15.12 if personal...

Court Disposition

Leave to amend granted on terms; plaintiff to pay defendant's costs thrown away on an indemnity basis.

Orders

  • ['Pursuant to the provisions of s 64(1)(b) and s 65(2)(c) of the Civil Procedure Act, the plaintiff has leave to amend the Statement of Claim by including a claim based on an allegation that the fraud was reported on 4 October 2011.' 'The plaintiff shall file and serve within two weeks of the date of this judgment...