Hardy Bros (Earthmoving) Pty Ltd (in liq) & anor v Hardy Bros Civil Constructions Pty Ltd & ors [2008] NSWSC 737

Hardy Bros (Earthmoving) Pty Ltd (in liq) & anor v Hardy Bros Civil Constructions Pty Ltd & ors [2008] NSWSC 737

Leave to amend was granted only in modified form because the proposed allegations that contributions and borrowings were merely 'purportedly' made were embarrassing and did not materially advance the plaintiff's case, but the plaintiff could plead a clear alternative case based on the contingency that Hardy Bros (Earthmoving) did not borrow $2.35 million from the directors.

Jurisdiction
Australia
Judgment Date
27 June 2008
Procedural Posture
Application for Leave to Further Amend Statement of Claim / Ex Tempore Judgment on Procedural Application
Outcome
Leave granted to amend in modified form.
Legal Topics
['leave to Amend Pleading' 'embarrassing Pleading' 'alternative Pleading' 'costs Thrown Away']
['civil Procedure' 'equity'] ['leave to Amend Pleading' 'embarrassing Pleading' 'alternative Pleading' 'costs Thrown Away']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Further Amend Statement of Claim / Ex Tempore Judgment on Procedural Application

Legal Issues

  1. 1 ['Whether the plaintiff should have leave to further amend its statement of claim in the form of the draft second further amended statement of claim.' 'Whether proposed allegations that documents were executed purporting to evidence contributions and borrowings, without alleging whether the transactions were or were not made, were embarrassing.' 'Whether the plaintiff should be permitted to plead an alternative case if Hardy Bros (Earthmoving) did not borrow $2.35 million from the directors.']

Ratio Decidendi

Leave to amend was granted only in modified form because the proposed allegations that contributions and borrowings were merely 'purportedly' made were embarrassing and did not materially advance the plaintiff's case, but the plaintiff could plead a clear alternative case based on the contingency that Hardy Bros (Earthmoving) did not borrow $2.35 million from the directors.

Court Disposition

Leave granted to amend in modified form.

Orders

  • ['Leave to amend paragraphs 12, 13, 14, 15, 16, 31A and 32(a) as proposed in the draft second further amended statement of claim refused.' 'Leave granted to amend in accordance with proposed paragraph 37B, subject to omitting the word "purported" from the second and fifth lines of that paragraph.' 'Leave granted to...