X P Hua & Anor v M S Tuckerman & Ors [2017] NSWSC 1147

X P Hua & Anor v M S Tuckerman & Ors [2017] NSWSC 1147

Leave to file the Second Further Amended Statement of Claim was refused because the proposed amendments would substantially expand the claims against the Eighth, Ninth and Tenth Defendants many years after the relevant events and after the proceedings were well advanced; the Ninth Defendant had not been served and had no opportunity to be heard although the amendments substantially affected his interests; the Plaintiffs had not adequately explained why the claims could not have been identified earlier from matters already known and pleaded; and the resulting prejudice, delay, increased cost, and prolongation of proceedings made the amendments inconsistent with the dictates of justice and...

Jurisdiction
Australia
Judgment Date
19 July 2017
Procedural Posture
Equity Corporations List; Civil Procedure Amendment Application / Interlocutory Application for Leave to File and Serve a Second Further Amended Statement of Claim
Outcome
The Plaintiffs' application for leave to file a Second Further Amended Statement of Claim was dismissed with costs.
Legal Topics
['pleadings' 'amendment of Pleadings' 'delay' 'prejudice' 'service of Interlocutory Application' 'overriding Purpose' 'costs']
['civil Procedure' 'corporations' 'equity'] ['pleadings' 'amendment of Pleadings' 'delay' 'prejudice' 'service of Interlocutory Application' 'overriding Purpose' 'costs']

Case Brief

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Procedural Posture

Equity Corporations List; Civil Procedure Amendment Application / Interlocutory Application for Leave to File and Serve a Second Further Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the Plaintiffs should have leave under ss 64 and 65 of the Civil Procedure Act 2005 (NSW) to file and serve a Second Further Amended Statement of Claim.' 'Whether the amendment application should be refused because the Ninth Defendant was not served and had no opportunity to be heard.' 'Whether delay in seeking the amendments and prejudice to the Eighth and Tenth Defendants, and other Defendants, made the amendments inconsistent with the just, quick and cheap resolution of the proceedings.' 'Whether the proposed claims were statute-barred or related back under s 65(3) of the Civil Procedure Act 2005 (NSW).' 'Whether the Plaintiffs should have leave to rely on the expert report of Ms Cherie Wright.']

Ratio Decidendi

Leave to file the Second Further Amended Statement of Claim was refused because the proposed amendments would substantially expand the claims against the Eighth, Ninth and Tenth Defendants many years after the relevant events and after the proceedings were well advanced; the Ninth Defendant had not been served and had no opportunity to be heard although the amendments substantially affected his interests; the Plaintiffs had not adequately explained why the claims could not have been identified earlier from matters already known and pleaded; and the resulting prejudice, delay, increased cost, and prolongation of proceedings made the amendments inconsistent with the dictates of justice and...

Court Disposition

The Plaintiffs' application for leave to file a Second Further Amended Statement of Claim was dismissed with costs.

Orders

  • ["The Plaintiffs' application for leave to file a Second Further Amended Statement of Claim is dismissed." 'The Plaintiffs pay the costs of the Eighth and Tenth Defendants of and incidental to the motion filed 14 June 2017, the amended motion filed 19 July 2017 and all directions hearings referable to the motions.'...