Sydneyean Air Pty Ltd v Vortex Air Pty Ltd & Anor [2022] NSWDC 339

Sydneyean Air Pty Ltd v Vortex Air Pty Ltd & Anor [2022] NSWDC 339

Although the amendment application was brought late and the explanation for delay was not entirely satisfactory, the proposed amendments were arguable, would avoid a likely separate proceeding, would more efficiently use judicial and administrative resources, and the respondent did not provide evidence showing that it could not fairly meet the amendments at the imminent hearing. Balancing the potential prejudice and the case management objectives, the discretion should be exercised to permit the amendments on terms.

Jurisdiction
Australia
Judgment Date
16 August 2022
Procedural Posture
Civil Proceeding / Interlocutory Application by the Defendants for Leave to Amend Their Defence Under S 64 of the Civil Procedure Act 2005 (nsw) Shortly Before Hearing
Outcome
Leave granted to the defendants to amend their Defence on terms.
Legal Topics
['application to Amend Defence' 'discretionary Case Management Considerations' 'set Off' 'assignment of Debts' 'prejudice and Delay' 'misleading or Deceptive Conduct']
['civil Procedure' 'contract Law' 'australian Consumer Law'] ['application to Amend Defence' 'discretionary Case Management Considerations' 'set Off' 'assignment of Debts' 'prejudice and Delay' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Civil Proceeding / Interlocutory Application by the Defendants for Leave to Amend Their Defence Under S 64 of the Civil Procedure Act 2005 (nsw) Shortly Before Hearing

Legal Issues

  1. 1 ["Whether the defendants should be granted leave to amend their Defence to plead assigned debts as statutory and equitable set-offs against the plaintiff's claim for unpaid invoices." 'Whether the lateness of the amendment application and the recent assignments caused unfair prejudice to the respondent or warranted refusal of leave.' 'Whether permitting the amendments would better resolve the real issues in dispute and avoid multiplicity of proceedings.']

Ratio Decidendi

Although the amendment application was brought late and the explanation for delay was not entirely satisfactory, the proposed amendments were arguable, would avoid a likely separate proceeding, would more efficiently use judicial and administrative resources, and the respondent did not provide evidence showing that it could not fairly meet the amendments at the imminent hearing. Balancing the potential prejudice and the case management objectives, the discretion should be exercised to permit the amendments on terms.

Court Disposition

Leave granted to the defendants to amend their Defence on terms.

Orders

  • ["The defendants are granted leave to amend their Defence in the form proposed in the affidavit annexed to Mr Tucker's affidavit in support of the motion." "The defendants are not permitted to rely upon additional evidence beyond that which they have already served in the proceeding without the Court's leave." "The...