Bank of Communications Co., Ltd v Sparkes [2020] NSWSC 1684

Bank of Communications Co., Ltd v Sparkes [2020] NSWSC 1684

The amendment was refused because the plaintiffs had deliberately chosen not to plead the MAE Issue despite being aware of the relevant facility agreement provisions, the explanation for the late change of position was inadequate, and allowing the amendment would prejudice Ms Pearce by requiring her to respond to a substantial new factual issue, potentially with expert evidence, in the limited time remaining before the scheduled hearing.

Jurisdiction
Australia
Judgment Date
27 November 2020
Procedural Posture
Commercial List Civil Proceeding Concerning Misleading and Deceptive Conduct Claims Arising From Drawdown Notices Issued by Arrium Finance and AIOH / Plaintiffs' Notice of Motion Filed 18 November 2020 Seeking to File an Amended Commercial List Statement
Outcome
Plaintiffs' notice of motion dismissed with costs.
Legal Topics
['pleadings' 'amendment of Commercial List Statement' 'misleading and Deceptive Conduct' 'material Adverse Effect' 'insolvency' 'forensic Decision Not to Plead an Issue' 'prejudice From Late Amendment']
['civil Procedure' 'equity Commercial List' 'consumer Law'] ['pleadings' 'amendment of Commercial List Statement' 'misleading and Deceptive Conduct' 'material Adverse Effect' 'insolvency' 'forensic Decision Not to Plead an Issue' 'prejudice From Late Amendment']

Case Brief

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Procedural Posture

Commercial List Civil Proceeding Concerning Misleading and Deceptive Conduct Claims Arising From Drawdown Notices Issued by Arrium Finance and AIOH / Plaintiffs' Notice of Motion Filed 18 November 2020 Seeking to File an Amended Commercial List Statement

Legal Issues

  1. 1 ["Whether the plaintiffs should be permitted to amend their Commercial List Statement to plead that changes in the Arrium Group's financial position had a material adverse effect under the relevant facility agreements." 'Whether the late amendment would prejudice Ms Pearce by raising a substantial factual issue too close to the scheduled hearing.' "Whether the plaintiffs' explanation for changing position, including a change of senior counsel and potential reliance on existing expert evidence, justified the amendment."]

Ratio Decidendi

The amendment was refused because the plaintiffs had deliberately chosen not to plead the MAE Issue despite being aware of the relevant facility agreement provisions, the explanation for the late change of position was inadequate, and allowing the amendment would prejudice Ms Pearce by requiring her to respond to a substantial new factual issue, potentially with expert evidence, in the limited time remaining before the scheduled hearing.

Court Disposition

Plaintiffs' notice of motion dismissed with costs.

Orders

  • ["The plaintiffs' notice of motion filed 18 November 2020 be dismissed with costs."]