Farriss v Axford [2019] NSWSC 1085

Farriss v Axford [2019] NSWSC 1085

Leave to amend was granted because the plaintiffs provided a satisfactory explanation for the delay, the proceedings had not been listed for trial, the defendants had not served liability evidence, there was no actual prejudice although some presumptive prejudice existed, the disputed particulars either were further particulars of negligence arising from the same or substantially the same facts or were permissible under s 65(2)(c), and the amendments could not be characterised as futile or hopeless before trial.

Jurisdiction
Australia
Judgment Date
26 August 2019
Procedural Posture
Application for Leave to File an Amended Statement of Claim / Interlocutory Procedural Ruling Before Trial
Outcome
Leave to amend granted; costs reserved.
Legal Topics
['leave to Amend Pleading' 'delay in Amendment Application' 'prejudice From Amendment' 'new Cause of Action After Limitation Period' 'futility of Amendments']
['practice and Procedure' 'negligence' 'limitation of Actions'] ['leave to Amend Pleading' 'delay in Amendment Application' 'prejudice From Amendment' 'new Cause of Action After Limitation Period' 'futility of Amendments']

Case Brief

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Procedural Posture

Application for Leave to File an Amended Statement of Claim / Interlocutory Procedural Ruling Before Trial

Legal Issues

  1. 1 ['Whether the plaintiffs gave a sufficient explanation for delay in seeking leave to amend their statement of claim.' 'Whether the proposed amendments would cause prejudice to the defendants.' 'Whether the proposed amendments introduced a new cause of action and, if so, whether s 65(2)(c) of the Civil Procedure Act 2005 (NSW) permitted the amendment after expiry of any limitation period.' 'Whether any proposed amendments were futile or hopeless.']

Ratio Decidendi

Leave to amend was granted because the plaintiffs provided a satisfactory explanation for the delay, the proceedings had not been listed for trial, the defendants had not served liability evidence, there was no actual prejudice although some presumptive prejudice existed, the disputed particulars either were further particulars of negligence arising from the same or substantially the same facts or were permissible under s 65(2)(c), and the amendments could not be characterised as futile or hopeless before trial.

Court Disposition

Leave to amend granted; costs reserved.

Orders

  • ['Pursuant to ss 64(1) and 65(2)(c) of the Civil Procedure Act, the plaintiffs are granted leave to amend their statement of claim.' 'The plaintiffs are to file and serve their amended statement of claim within 14 days.' 'Costs are reserved.']