Perpetual Trustees Victoria Ltd v Belcastro [2011] NSWSC 1418

Perpetual Trustees Victoria Ltd v Belcastro [2011] NSWSC 1418

Leave should be granted to Mrs Belcastro to file and rely upon her second further amended cross-claim and second further amended defence. Although there is delay and some prejudice, the explanation provided—including health issues and changing legal representation—is sufficient in the absence of demonstrated material prejudice. The limitation issues raised are not sufficiently clear to warrant rejection of the amendments at the interlocutory stage and should be determined at trial.

Parties
Plaintiff/first Cross Defendant: Perpetual Trustees Victoria Limited (ACN 004 027 258); First Defendant: Dominic Belcastro; Second Defendant/cross Claimant: Maria Teresa Belcastro; Second Cross Defendant: Mawson Securities Pty Ltd; Third Cross Defendant: Ted O'Shannessy; Fourth Cross Defendant: Lorraine Astley
Jurisdiction
Australia
Judgment Date
25 November 2011
Procedural Posture
Interlocutory Applications / Application for Leave to Amend Pleadings
Outcome
Leave to amend granted
Legal Topics
Mortgage Liability, Unconscionable Conduct, Leave to Amend Pleadings, Limitation Periods, Procedure – Amendment of Pleadings
Contract Law Property Law Civil Procedure Limitation of Actions Mortgage Liability Unconscionable Conduct Leave to Amend Pleadings Limitation Periods +1 more

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Parties

Perpetual Trustees Victoria Limited (ACN 004 027 258)

Plaintiff/first Cross Defendant

Dominic Belcastro

First Defendant

Maria Teresa Belcastro

Second Defendant/cross Claimant

Mawson Securities Pty Ltd

Second Cross Defendant

Ted O'Shannessy

Third Cross Defendant

Lorraine Astley

Fourth Cross Defendant

Procedural Posture

Interlocutory Applications / Application for Leave to Amend Pleadings

Legal Issues

  1. 1 Whether leave should be granted to amend the cross-claim and defence
  2. 2 Whether claims are statute-barred under Limitation Act 1969
  3. 3 Whether there is sufficient explanation for the delay in amending pleadings

Ratio Decidendi

Leave should be granted to Mrs Belcastro to file and rely upon her second further amended cross-claim and second further amended defence. Although there is delay and some prejudice, the explanation provided—including health issues and changing legal representation—is sufficient in the absence of demonstrated material prejudice. The limitation issues raised are not sufficiently clear to warrant rejection of the amendments at the interlocutory stage and should be determined at trial.

Court Disposition

Leave to amend granted

Orders

  • Leave granted to the cross-claimant to file, serve and rely on the second further amended cross-claim filed on 19 April 2011.
  • Leave granted to the second defendant to file, serve and rely on the second further amended defence filed on 23 December 2010.