Nitopi v Nitopi [2018] NSWSC 1504

Nitopi v Nitopi [2018] NSWSC 1504

The existing defence was defective, but leave to file an amended defence should be granted on conditions preserving identified positive averments from the existing defence because the second cross-defendant had not shown a proper basis for withdrawing them. The strike-out and amendment motions were otherwise dismissed, with costs reflecting the history and mixed success of the motions.

Jurisdiction
Australia
Judgment Date
03 October 2018
Procedural Posture
Common Law Proceeding; Cross Claim Pleading Dispute / Procedural Ruling on Two Notices of Motion: Strike Out Defence to Cross Claim and Leave to File Amended Defence to Cross Claim
Outcome
Matter stood over for directions; conditional mediation reporting ordered; second cross-defendant granted leave to file an amended defence prepared in accordance with the reasons; both Notices of Motion otherwise dismissed; costs orders made.
Legal Topics
['pleadings' 'amended Defence' 'strike Out' 'admissions' 'costs' 'mediation']
['civil Procedure'] ['pleadings' 'amended Defence' 'strike Out' 'admissions' 'costs' 'mediation']

Case Brief

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Procedural Posture

Common Law Proceeding; Cross Claim Pleading Dispute / Procedural Ruling on Two Notices of Motion: Strike Out Defence to Cross Claim and Leave to File Amended Defence to Cross Claim

Legal Issues

  1. 1 ["Whether most of the second cross-defendant's defence to the cross-claim should be struck out." 'Whether the second cross-defendant should be granted leave to file an amended defence to the cross-claim.' 'Whether asserted admissions or positive factual averments in the existing defence could be withdrawn without a proper basis.' 'What costs orders should be made on the two Notices of Motion.']

Ratio Decidendi

The existing defence was defective, but leave to file an amended defence should be granted on conditions preserving identified positive averments from the existing defence because the second cross-defendant had not shown a proper basis for withdrawing them. The strike-out and amendment motions were otherwise dismissed, with costs reflecting the history and mixed success of the motions.

Court Disposition

Matter stood over for directions; conditional mediation reporting ordered; second cross-defendant granted leave to file an amended defence prepared in accordance with the reasons; both Notices of Motion otherwise dismissed; costs orders made.

Orders

  • ['Stand the matter over for directions before the Registrar on 20 November 2018 at 9.00am.' "In the event that it is known by 14 November 2018 that the plaintiff's application for leave to appeal has been refused, the parties are to confer about a court-ordered mediation and report to the Registrar accordingly on 20...