Nowland v Maiolla; Casbee Properties Pty Ltd v Eastwood Air Conditioning Pty Ltd [2013] NSWSC 980

Nowland v Maiolla; Casbee Properties Pty Ltd v Eastwood Air Conditioning Pty Ltd [2013] NSWSC 980

Leave to amend was appropriate because the delay was caused by exceptional and genuine personal difficulties of counsel for which the Nowland interests were not personally responsible, the amendments largely involved different legal bases for substantially the same facts, the Nowland interests proposed to rely on existing evidence, and the Maiolla interests had not demonstrated real and actual prejudice sufficient to justify refusal, although liberty to apply was necessary to protect against later demonstrated prejudice.

Jurisdiction
Australia
Judgment Date
11 July 2013
Procedural Posture
Interlocutory Applications / Amended Notice of Motion for Leave to Amend Pleadings Shortly Before Hearing
Outcome
Leave to amend granted on terms, with liberty to apply.
Legal Topics
['pleadings' 'leave to Amend' 'late Amendment' 'prejudice' 'costs Thrown Away']
['civil Procedure'] ['pleadings' 'leave to Amend' 'late Amendment' 'prejudice' 'costs Thrown Away']

Case Brief

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Procedural Posture

Interlocutory Applications / Amended Notice of Motion for Leave to Amend Pleadings Shortly Before Hearing

Legal Issues

  1. 1 ['Whether the Nowland interests should be granted leave to amend the statement of claim in one proceeding and the defence in the other proceeding shortly before the fixed hearing date.' "Whether the delay in seeking leave to amend was sufficiently explained by counsel's significant personal difficulties." 'Whether the proposed amendments would cause prejudice to the Maiolla interests sufficient to refuse leave.']

Ratio Decidendi

Leave to amend was appropriate because the delay was caused by exceptional and genuine personal difficulties of counsel for which the Nowland interests were not personally responsible, the amendments largely involved different legal bases for substantially the same facts, the Nowland interests proposed to rely on existing evidence, and the Maiolla interests had not demonstrated real and actual prejudice sufficient to justify refusal, although liberty to apply was necessary to protect against later demonstrated prejudice.

Court Disposition

Leave to amend granted on terms, with liberty to apply.

Orders

  • ['Amendments to the Short Minutes in 2012/136262 to be taken as mutatis mutandis with the other proceedings.' 'Liberty to apply on two days notice.']