Neobev Pty Ltd v Bacchus Distillery Pty Ltd (Administrators Appointed) (No 2) [2013] FCA 1374

Neobev Pty Ltd v Bacchus Distillery Pty Ltd (Administrators Appointed) (No 2) [2013] FCA 1374

The Court allowed the unopposed amendments and also allowed the opposed Annexure C amendment because relevant claims should be permitted unless clearly contrary to the interests of justice, and the Court was not satisfied that the late amendment resulted from substantial fault by the applicant or that the respondent could not deal with it at the imminent trial. The Court adjourned the application to add paragraphs 33A to 33F, refused to exclude the challenged affidavits because it was not satisfied they were not affidavits in reply, and ordered the applicant to pay the respondent's costs of the amendment application and costs thrown away.

Jurisdiction
Australia
Judgment Date
12 December 2013
Procedural Posture
Federal Court Civil Proceeding With Originating Application and Cross Claim / Interlocutory Applications Before Trial Concerning Amendments, Evidence, Security for Costs, Costs and Procedural Timetabling
Outcome
Application to amend originating application and statement of claim granted in part; application to add paragraphs 33A to 33F adjourned; respondent's application to exclude affidavits refused, with costs reserved; further security for costs and procedural timetable orders made.
Legal Topics
['leave to Amend Originating Application' 'leave to Amend Statement of Claim' 'costs Thrown Away by Amendments' 'further Security for Costs' 'affidavits in Reply' 'exclusion of Evidence' 'cross Claim Pleadings' 'extension of Time for Submissions']
['civil Procedure' 'evidence' 'costs'] ['leave to Amend Originating Application' 'leave to Amend Statement of Claim' 'costs Thrown Away by Amendments' 'further Security for Costs' 'affidavits in Reply' 'exclusion of Evidence' 'cross Claim Pleadings' 'extension of Time for Submissions']

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Procedural Posture

Federal Court Civil Proceeding With Originating Application and Cross Claim / Interlocutory Applications Before Trial Concerning Amendments, Evidence, Security for Costs, Costs and Procedural Timetabling

Legal Issues

  1. 1 ['Whether the applicant should have leave to amend the originating application and statement of claim.' 'Whether proposed amendments adding Annexure C, referring to 69 documents, should be allowed despite the proximity of trial and the burden on the respondent.' 'Whether the application to amend the statement of claim to add paragraphs 33A to 33F should be adjourned.' "Whether Mr Scott's affidavit sworn on 10 December 2013 and the affidavits of Mr Morton and Mr Fotheringham should be excluded from evidence at trial." 'What costs and procedural orders should be made as a result of the amendments and interlocutory applications.']

Ratio Decidendi

The Court allowed the unopposed amendments and also allowed the opposed Annexure C amendment because relevant claims should be permitted unless clearly contrary to the interests of justice, and the Court was not satisfied that the late amendment resulted from substantial fault by the applicant or that the respondent could not deal with it at the imminent trial. The Court adjourned the application to add paragraphs 33A to 33F, refused to exclude the challenged affidavits because it was not satisfied they were not affidavits in reply, and ordered the applicant to pay the respondent's costs of the amendment application and costs thrown away.

Court Disposition

Application to amend originating application and statement of claim granted in part; application to add paragraphs 33A to 33F adjourned; respondent's application to exclude affidavits refused, with costs reserved; further security for costs and procedural timetable orders made.

Orders

  • ["The applicant have leave to amend the originating application in terms of document number 1 in the applicant's book of proposed amended documents." "The applicant have leave to amend the statement of claim in terms of document number 2 in the applicant's book of proposed amended documents, save and except...