Barkat & anor v Bitel & anor (No 2) [2008] NSWSC 408

Barkat & anor v Bitel & anor (No 2) [2008] NSWSC 408

Because the plaintiffs' post-judgment particulars sought to continue a damages case based on an amendment to the statement of claim that had already been refused, the defendants were entitled to orders limiting those claims and requiring proper particulars. The defendants were also entitled to amend their defence to identify the issues, while the plaintiffs' motion for service of evidence and a hearing date was premature due to the deficient particulars. The plaintiffs' conduct provoked the defendants' motion, justifying indemnity costs and leave to enforce forthwith.

Jurisdiction
Australia
Judgment Date
14 February 2000
Procedural Posture
Common Law Division Civil Proceeding / Interlocutory Notices of Motion
Outcome
Defendants' notice of motion granted in terms of paragraphs 1, 2, 3 and 4; plaintiffs' motion dismissed; plaintiffs ordered to pay costs, including indemnity costs of the defendants' motion.
Legal Topics
['particulars' 'pleadings' 'amendment of Defence' 'interlocutory Relief' 'expert Evidence' 'costs']
['civil Procedure'] ['particulars' 'pleadings' 'amendment of Defence' 'interlocutory Relief' 'expert Evidence' 'costs']

Case Brief

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Procedural Posture

Common Law Division Civil Proceeding / Interlocutory Notices of Motion

Legal Issues

  1. 1 ['Whether the defendants should be required to respond to particulars advancing damages outside the scope of the statement of claim after refusal of an amendment.' 'Whether the defendants should have leave to file an amended defence.' "Whether the plaintiffs' application for the defendants to serve lay evidence and for a hearing date should be granted." "Whether costs of the defendants' notice of motion should be ordered on an indemnity basis."]

Ratio Decidendi

Because the plaintiffs' post-judgment particulars sought to continue a damages case based on an amendment to the statement of claim that had already been refused, the defendants were entitled to orders limiting those claims and requiring proper particulars. The defendants were also entitled to amend their defence to identify the issues, while the plaintiffs' motion for service of evidence and a hearing date was premature due to the deficient particulars. The plaintiffs' conduct provoked the defendants' motion, justifying indemnity costs and leave to enforce forthwith.

Court Disposition

Defendants' notice of motion granted in terms of paragraphs 1, 2, 3 and 4; plaintiffs' motion dismissed; plaintiffs ordered to pay costs, including indemnity costs of the defendants' motion.

Orders

  • ["On the defendants' notice of motion filed 24 April 2008, orders in terms of paragraphs 1, 2, 3 and 4." "The plaintiffs' motion filed 1 May 2008 is dismissed." "The plaintiffs are to pay the defendants' costs of the notice of motion of 1 May 2008." "The plaintiffs are to pay the defendants' costs of the notice of...