Yakiti Pty Ltd v MacDonald (No. 2) [2018] NSWSC 1970

Yakiti Pty Ltd v MacDonald (No. 2) [2018] NSWSC 1970

Leave to amend was refused for most of the proposed changes because they were raised extremely late, lacked sufficient specificity, raised new factual issues not clearly articulated, and the delay in seeking such amendments was inadequately explained; only minor amendments were permitted where there was no objection and prejudice would not arise. Leave to rely on affidavit evidence was only granted to the extent it genuinely constituted evidence in reply and did not unfairly prejudice the opposing parties due to inability to answer close to trial.

Jurisdiction
Australia
Judgment Date
18 December 2018
Procedural Posture
Civil / Interlocutory Application—application for Leave to Amend Cross Claim and Rely on Affidavit Evidence
Outcome
Leave granted in part; most amendments and affidavit evidence refused; costs awarded against cross-claimant.
Legal Topics
['pleadings' 'amendment of Pleadings' 'affidavit Evidence' 'costs']
['civil Procedure'] ['pleadings' 'amendment of Pleadings' 'affidavit Evidence' 'costs']

Case Brief

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Procedural Posture

Civil / Interlocutory Application—application for Leave to Amend Cross Claim and Rely on Affidavit Evidence

Legal Issues

  1. 1 ['Whether leave should be granted for late amendment to the cross-claim' 'Whether cross-claimant should be permitted to rely on additional affidavit evidence' 'Whether amendments raise new factual matters or prejudice respondents' 'Whether cross-claimant’s delay is adequately explained']

Ratio Decidendi

Leave to amend was refused for most of the proposed changes because they were raised extremely late, lacked sufficient specificity, raised new factual issues not clearly articulated, and the delay in seeking such amendments was inadequately explained; only minor amendments were permitted where there was no objection and prejudice would not arise. Leave to rely on affidavit evidence was only granted to the extent it genuinely constituted evidence in reply and did not unfairly prejudice the opposing parties due to inability to answer close to trial.

Court Disposition

Leave granted in part; most amendments and affidavit evidence refused; costs awarded against cross-claimant.

Orders

  • ['Leave to the cross-claimant to amend paragraphs 10 and 45(c)(iii) of the third further amended cross-claim in the manner set out in paragraph [15] of the judgment. The amendments are to be made in writing on the third further amended cross-claim.' 'The cross-claimant is permitted to rely on the evidence in the...