Elphick v Elphick [2016] NSWSC 1662

Elphick v Elphick [2016] NSWSC 1662

The interests of justice required the hearing to be vacated and Mr Elphick to have an opportunity to properly plead his claim. The expedited listing had been justified only by the interaction between the 2016 proceedings and enforcement of the Cronulla property judgment, not by the remaining commercial contract claim. Although there would be delay and cost, the proposed Laidley Agreement claim was not insubstantial, was not shown to be incapable of being properly pleaded, and Mr Elphick's failure to be ready was not wholly his fault because the defendants' solicitor's inappropriate letter contributed to his solicitor ceasing to act.

Jurisdiction
Australia
Judgment Date
23 August 2016
Procedural Posture
Civil Practice and Procedure; Notice of Motion Seeking Leave to Amend Statement of Claim and Adjournment of Hearing / Interlocutory Application on the First Day of an Expedited Hearing
Outcome
The hearing fixed for 23 and 24 August 2016 was vacated; the plaintiff was given an opportunity to amend the Statement of Claim; costs orders were made.
Legal Topics
['leave to Amend Pleadings' 'adjournment of Hearing' 'overriding Purpose' 'case Management' 'costs of Amendment and Adjournment' 'contracts Review Act Claim' 'alleged Breach of the Laidley Agreement']
['civil Procedure' 'contract' 'costs'] ['leave to Amend Pleadings' 'adjournment of Hearing' 'overriding Purpose' 'case Management' 'costs of Amendment and Adjournment' 'contracts Review Act Claim' 'alleged Breach of the Laidley Agreement']

Case Brief

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Procedural Posture

Civil Practice and Procedure; Notice of Motion Seeking Leave to Amend Statement of Claim and Adjournment of Hearing / Interlocutory Application on the First Day of an Expedited Hearing

Legal Issues

  1. 1 ['Whether the plaintiff should be permitted to amend the Statement of Claim in the 2016 proceedings.' 'Whether the expedited hearing fixed for 23 and 24 August 2016 should be vacated or adjourned.' 'Whether the interests of justice under the Civil Procedure Act 2005 required an adjournment despite delay, cost and alleged procedural defaults.' 'What costs orders should be made in respect of any amendment and the adjournment.']

Ratio Decidendi

The interests of justice required the hearing to be vacated and Mr Elphick to have an opportunity to properly plead his claim. The expedited listing had been justified only by the interaction between the 2016 proceedings and enforcement of the Cronulla property judgment, not by the remaining commercial contract claim. Although there would be delay and cost, the proposed Laidley Agreement claim was not insubstantial, was not shown to be incapable of being properly pleaded, and Mr Elphick's failure to be ready was not wholly his fault because the defendants' solicitor's inappropriate letter contributed to his solicitor ceasing to act.

Court Disposition

The hearing fixed for 23 and 24 August 2016 was vacated; the plaintiff was given an opportunity to amend the Statement of Claim; costs orders were made.

Orders

  • ["Order the plaintiff to pay the defendant's costs of and occasioned by the filing and service of any Amended Statement of Claim;" 'Reserve to the trial Judge the costs of and occasioned by the adjournment of the proceedings including the costs of 23 and 24 August 2016.']