Booth v Cerreto (No 2) [2021] NSWSC 1100

Booth v Cerreto (No 2) [2021] NSWSC 1100

Leave to amend the statement of claim to include new causes of action, rescission, and orders for transfer of property is refused where such amendments rest on facts known or discoverable long ago, explanation for delay is inadequate, they are inconsistent with the parties’ agreement for a judicial sale after expert report, and would prejudice defendants through further delay and expanding substantive matters for resolution without being essential to plaintiffs’ relief. Leave is granted only to those amendments not opposed by defendants.

Jurisdiction
Australia
Judgment Date
31 August 2021
Procedural Posture
Civil (equity) Procedural Ruling / Ruling on Motion for Leave to Amend Statement of Claim
Outcome
Leave to amend statement of claim granted in part; leave refused for new causes of action and claims inconsistent with prior agreement for judicial sale; costs ordered against plaintiffs for contested motion.
Legal Topics
['pleadings' 'amendment of Pleading' 'joint Venture' 'breach of Fiduciary Duty' 'contract Termination' 'judicial Sale']
['civil Procedure' 'equity'] ['pleadings' 'amendment of Pleading' 'joint Venture' 'breach of Fiduciary Duty' 'contract Termination' 'judicial Sale']

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Procedural Posture

Civil (equity) Procedural Ruling / Ruling on Motion for Leave to Amend Statement of Claim

Legal Issues

  1. 1 ['Whether leave should be granted to the plaintiffs to amend their statement of claim to include new causes of action and claims for relief' 'Whether the plaintiffs have adequately explained delay in seeking amendments' 'Whether proposed amendments are inconsistent with agreement for judicial sale and prior procedural orders' 'Whether granting leave would cause prejudice or delay proceedings']

Ratio Decidendi

Leave to amend the statement of claim to include new causes of action, rescission, and orders for transfer of property is refused where such amendments rest on facts known or discoverable long ago, explanation for delay is inadequate, they are inconsistent with the parties’ agreement for a judicial sale after expert report, and would prejudice defendants through further delay and expanding substantive matters for resolution without being essential to plaintiffs’ relief. Leave is granted only to those amendments not opposed by defendants.

Court Disposition

Leave to amend statement of claim granted in part; leave refused for new causes of action and claims inconsistent with prior agreement for judicial sale; costs ordered against plaintiffs for contested motion.

Orders

  • ['Leave granted to amend Statement of Claim as set out in Annexure B (30 June 2021) but not including amendments at prayers for relief [2A] to [2E], [3], [4A], [6Aii], [10]; and as further specified in para [76] of judgment.' "Plaintiffs to pay defendants' costs of the notice of motion filed 28 May 2021."...