Lobster & Co Trading Pty Ltd v Nisbets Australia Pty Limited [2023] NSWSC 1179

Lobster & Co Trading Pty Ltd v Nisbets Australia Pty Limited [2023] NSWSC 1179

Leave to file a further amended summons was refused because there was an approximately 10 month delay without a satisfactory explanation. Leave on Appeal Ground 2 was refused because the refusal to allow the amended statement of claim raised no issue of principle, public importance or reasonably clear injustice, and the Magistrate was entitled to consider delay, prejudice, cost, the small amount in dispute and fairness. Appeal Ground 3 failed because the relevant documents referred to an expected dispatch date, not a guaranteed delivery date, and the words "express dispatch" and "expected dispatch date" did not amount to a promise to deliver by 22 December 2021 or 3 February 2022. The...

Jurisdiction
Australia
Judgment Date
29 September 2023
Procedural Posture
Appeal From Local Court Decision / Supreme Court Determination of Appeal and Applications for Leave
Outcome
Leave to file a further amended summons was refused; leave to appeal on Appeal Ground 2 was refused; Appeal Ground 3 failed; the Local Court decision was affirmed; the amended summons was dismissed; the appellant was ordered to pay the respondent's costs.
Legal Topics
['local Court Appeal' 'leave to Appeal' 'amendment of Pleadings' 'contractual Construction' 'reasonable Time for Delivery' 'costs']
['contract Law' 'civil Procedure' 'sale of Goods' 'appeals'] ['local Court Appeal' 'leave to Appeal' 'amendment of Pleadings' 'contractual Construction' 'reasonable Time for Delivery' 'costs']

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

Appeal From Local Court Decision / Supreme Court Determination of Appeal and Applications for Leave

Legal Issues

  1. 1 ['Whether leave should be granted to file a further amended summons to appeal against an indemnity costs order.' 'Whether leave should be granted in relation to Appeal Ground 2 concerning refusal to allow an amended statement of claim on the day of the Local Court hearing.' 'Whether the Local Court erred by determining the proceeding on the pleaded case rather than on unpleaded issues said to arise from the evidence.' 'Whether the contract contained a term or representation requiring delivery of the chairs by, close to, or as soon after 22 December 2021 as reasonable.' 'Whether the words "express dispatch" and "expected dispatch date" amounted to a promise or time-is-of-the-essence obligation.']

Ratio Decidendi

Leave to file a further amended summons was refused because there was an approximately 10 month delay without a satisfactory explanation. Leave on Appeal Ground 2 was refused because the refusal to allow the amended statement of claim raised no issue of principle, public importance or reasonably clear injustice, and the Magistrate was entitled to consider delay, prejudice, cost, the small amount in dispute and fairness. Appeal Ground 3 failed because the relevant documents referred to an expected dispatch date, not a guaranteed delivery date, and the words "express dispatch" and "expected dispatch date" did not amount to a promise to deliver by 22 December 2021 or 3 February 2022. The...

Court Disposition

Leave to file a further amended summons was refused; leave to appeal on Appeal Ground 2 was refused; Appeal Ground 3 failed; the Local Court decision was affirmed; the amended summons was dismissed; the appellant was ordered to pay the respondent's costs.

Orders

  • ['Leave to file a further amended summons is refused.' 'Leave to appeal in relation to Appeal Ground 2 is refused.' 'Appeal Ground 3 has failed.' 'The decision of Magistrate Greenwood dated 20 October 2022 is affirmed.' 'The Amended Summons dated 24 March 2023 is dismissed.' "The appellant is to pay the respondent's...