Ginger Roger Pty Ltd v Parrella Enterprises Pty Ltd (No 2) [2010] FCA 128

Ginger Roger Pty Ltd v Parrella Enterprises Pty Ltd (No 2) [2010] FCA 128

Leave to amend was granted only in part. The amendments concerning contributory negligence, apportionment and concurrent wrongdoers did not take the applicants by surprise, substantially overlapped with existing pleaded and evidentiary material, were not shown to be the product of improper delay or tactic, and were not shown to require vacation of the trial dates. However, leave was refused for proposed paragraphs 38C(b), (c) and (d) because they raised new and substantive issues concerning duties under s.180 of the Corporations Act 2001 and created a real prospect of conflict between the applicants, causing unfair prejudice less than two weeks before trial.

Jurisdiction
Australia
Judgment Date
24 February 2010
Procedural Posture
Notice of Motion for Leave to Amend Defence Pursuant to Order 13 Rule 2 of the Federal Court Rules / Interlocutory Application Before Trial
Outcome
Notice of motion allowed in part.
Legal Topics
['leave to Amend Defence' 'misleading and Deceptive Conduct' 'contributory Negligence' 'apportionable Claims' 'concurrent Wrongdoers' 'case Management and Late Amendments']
['practice and Procedure' 'trade Practices' 'corporations Law'] ['leave to Amend Defence' 'misleading and Deceptive Conduct' 'contributory Negligence' 'apportionable Claims' 'concurrent Wrongdoers' 'case Management and Late Amendments']

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Procedural Posture

Notice of Motion for Leave to Amend Defence Pursuant to Order 13 Rule 2 of the Federal Court Rules / Interlocutory Application Before Trial

Legal Issues

  1. 1 ['Whether the third and fourth respondents should have leave under Order 13 rule 2 of the Federal Court Rules to amend their Defence shortly before trial.' 'Whether the proposed amendments concerning contributory negligence, apportionment of liability and concurrent wrongdoers would unfairly prejudice the applicants or disrupt the trial.' 'Whether proposed paragraphs 38C(b), (c) and (d), concerning alleged duties of the second applicant to the first applicant under common law and s.180 of the Corporations Act 2001, should be permitted.']

Ratio Decidendi

Leave to amend was granted only in part. The amendments concerning contributory negligence, apportionment and concurrent wrongdoers did not take the applicants by surprise, substantially overlapped with existing pleaded and evidentiary material, were not shown to be the product of improper delay or tactic, and were not shown to require vacation of the trial dates. However, leave was refused for proposed paragraphs 38C(b), (c) and (d) because they raised new and substantive issues concerning duties under s.180 of the Corporations Act 2001 and created a real prospect of conflict between the applicants, causing unfair prejudice less than two weeks before trial.

Court Disposition

Notice of motion allowed in part.

Orders

  • ['The notice of motion be allowed in part.' 'The third and fourth respondents have leave, pursuant to Order 13 rule 2 of the Federal Court Rules, to amend their Defence to the applicants\' claim by the addition of paragraphs 38A, 38B and 38C(a), (e), (f) and (g) as found in the document titled "DEFENCE OF THE THIRD...