Ingot v Macquarie [No 3] [2005] NSWSC 255

Ingot v Macquarie [No 3] [2005] NSWSC 255

The cross-claim amendments introduced new causes of action and did not fall within Pt 20 r 4(5), but the Court had power under Pt 20 r 1 to permit them. The defendants' discretionary objections, considered individually and cumulatively, did not justify refusing leave because pleading and particularity issues could be dealt with by particulars, prejudice could be addressed by conditions and costs, the vacation of the hearing date was not shown to be probable, and the indirect causation case was not necessarily doomed to fail. Leave would therefore be granted on terms, with the operative date of the amendments reserved to the trial judge.

Jurisdiction
Australia
Judgment Date
04 April 2005
Procedural Posture
Application for Leave Further to Amend Summons / Supreme Court of New South Wales, Equity Division, Commercial List; Further Amendment Application After an Earlier Application for Leave to Amend Had Been Dismissed
Outcome
The Court indicated it would grant leave to amend on terms, but made only procedural stand-over orders so the parties could consider the proposed terms.
Legal Topics
['leave to Amend Summons' 'amendment Outside Limitation Period' 'power to Amend Under Pt 20 R 1 and Pt 20 R 4' 'particulars' 'vacation of Hearing Date' 'costs Thrown Away' 'indemnity Costs' 'prejudice From Amendment']
['practice and Procedure' 'civil Procedure' 'limitation of Actions'] ['leave to Amend Summons' 'amendment Outside Limitation Period' 'power to Amend Under Pt 20 R 1 and Pt 20 R 4' 'particulars' 'vacation of Hearing Date' 'costs Thrown Away' 'indemnity Costs' 'prejudice From Amendment']

Case Brief

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Procedural Posture

Application for Leave Further to Amend Summons / Supreme Court of New South Wales, Equity Division, Commercial List; Further Amendment Application After an Earlier Application for Leave to Amend Had Been Dismissed

Legal Issues

  1. 1 ['Whether the Court had power under SCR Pt 20 r 1 to permit amendments introducing causes of action that may be statute-barred even where Pt 20 r 4 did not apply.' 'Whether the proposed cross-claim amendments added new causes of action arising out of the same or substantially the same facts for the purposes of Pt 20 r 4(5).' 'Whether leave to amend should be refused because of pleading defects or insufficient particulars.' 'Whether leave to amend should be refused because of insufficient explanation for the late amendments, personal prejudice, costs prejudice, possible vacation of the hearing date, alleged bargaining with the Court, or discovery burdens.' 'Whether the amendments were doomed to fail by reason of Digi-Tech (Aust) Ltd v Brand [2004] NSWCA 58.']

Ratio Decidendi

The cross-claim amendments introduced new causes of action and did not fall within Pt 20 r 4(5), but the Court had power under Pt 20 r 1 to permit them. The defendants' discretionary objections, considered individually and cumulatively, did not justify refusing leave because pleading and particularity issues could be dealt with by particulars, prejudice could be addressed by conditions and costs, the vacation of the hearing date was not shown to be probable, and the indirect causation case was not necessarily doomed to fail. Leave would therefore be granted on terms, with the operative date of the amendments reserved to the trial judge.

Court Disposition

The Court indicated it would grant leave to amend on terms, but made only procedural stand-over orders so the parties could consider the proposed terms.

Orders

  • ['The proceedings were stood over to Thursday 7 April 2005 at 9.30 am for the making of orders to give effect to the reasons.' 'The proceedings were to be listed thereafter in the Motions List on Friday 8 April 2005 at 9.15 am.']