Sergi v Sergi [2019] NSWSC 865

Sergi v Sergi [2019] NSWSC 865

The assertion in paragraph 9 of the Cross-Claim that the partnership was a partnership at will was part of an affirmative cross-claim, not a pleading admission or formal admission, and it was not objectively apparent from the pleadings that it operated for the benefit of the plaintiffs. UCPR r 12.6(2) therefore did not require leave to withdraw it, or the Defence's reliance on the Cross-Claim. Leave to amend under Civil Procedure Act 2005 (NSW) s 64(1)(b) was granted because the proposed partnership and trust issues were not untenable, arose at a relatively early stage, appeared central to the dispute, assisted determination of the real issues, and caused no irremediable prejudice.

Jurisdiction
Australia
Judgment Date
11 July 2019
Procedural Posture
Equity Proceedings Seeking Relief Under Conveyancing Act 1919 (nsw) S 66 G, With Defence and Cross Claim / Amended Notice of Motion Seeking Leave to Amend Defence and Cross Claim And, If Necessary, Leave to Withdraw Admissions
Outcome
Leave granted to amend Defence and Cross-Claim, with limitations and costs orders.
Legal Topics
['pleadings' 'admissions' 'withdrawal of Admissions' 'leave to Amend' 'uniform Civil Procedure Rules 2005 (nsw) R 12.6' 'civil Procedure Act 2005 (nsw) S 64' 'conveyancing Act 1919 (nsw) S 66 G' 'partnership at Will' 'specific Performance' 'costs']
['civil Procedure' 'equity' 'property Law' 'partnership Law' 'trusts'] ['pleadings' 'admissions' 'withdrawal of Admissions' 'leave to Amend' 'uniform Civil Procedure Rules 2005 (nsw) R 12.6' 'civil Procedure Act 2005 (nsw) S 64' 'conveyancing Act 1919 (nsw) S 66 G' 'partnership at Will' 'specific Performance' 'costs']

Case Brief

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Procedural Posture

Equity Proceedings Seeking Relief Under Conveyancing Act 1919 (nsw) S 66 G, With Defence and Cross Claim / Amended Notice of Motion Seeking Leave to Amend Defence and Cross Claim And, If Necessary, Leave to Withdraw Admissions

Legal Issues

  1. 1 ['Whether the assertion in paragraph 9 of the Cross-Claim that a partnership was a partnership at will was an admission within Uniform Civil Procedure Rules 2005 (NSW) r 12.6(2).' 'Whether the assertion of a partnership at will was another matter that operated for the benefit of the plaintiffs within Uniform Civil Procedure Rules 2005 (NSW) r 12.6(2).' "Whether leave under Uniform Civil Procedure Rules 2005 (NSW) r 12.6(2) was required to withdraw the assertion of a partnership at will and the Defence's reliance on the Cross-Claim." 'Whether leave should be granted under Civil Procedure Act 2005 (NSW) s 64(1)(b) to file the proposed Amended Defence and Amended Cross-Claim.' 'What costs orders should be made in relation to the amendments application and the 10 May 2019 directions hearing.']

Ratio Decidendi

The assertion in paragraph 9 of the Cross-Claim that the partnership was a partnership at will was part of an affirmative cross-claim, not a pleading admission or formal admission, and it was not objectively apparent from the pleadings that it operated for the benefit of the plaintiffs. UCPR r 12.6(2) therefore did not require leave to withdraw it, or the Defence's reliance on the Cross-Claim. Leave to amend under Civil Procedure Act 2005 (NSW) s 64(1)(b) was granted because the proposed partnership and trust issues were not untenable, arose at a relatively early stage, appeared central to the dispute, assisted determination of the real issues, and caused no irremediable prejudice.

Court Disposition

Leave granted to amend Defence and Cross-Claim, with limitations and costs orders.

Orders

  • ['Leave granted to the active defendants pursuant to Civil Procedure Act 2005 (NSW) s 64(1)(b) to file the proposed Amended Defence.' 'Leave granted to the active defendants to file the proposed Amended Cross-Claim, save in respect of paragraphs 18 to 22.' "The active defendants are to pay any of the plaintiffs'...