Sturesteps v Khoury [2020] NSWSC 201

Sturesteps v Khoury [2020] NSWSC 201

Leave to amend the defence and to rely on the further affidavit should be granted as any potential prejudice to the plaintiffs can be addressed at trial through objections and the amendments are necessary for the Court to determine the real questions in dispute, consistent with the overriding purpose of the Civil Procedure Act 2005 (NSW).

Parties
First Plaintiff: Beryl Donna Sturesteps as the representative of the estate of the late George Osvald Sturesteps; Second Plaintiff: Beryl Donna Sturesteps; First Defendant: Dieb Peter Khoury; Second Defendant: Benjamin and Khoury Pty Limited ACN 104 057 043
Jurisdiction
Australia
Judgment Date
06 March 2020
Procedural Posture
Civil / Application for Leave to Amend Defence
Outcome
Leave to file second further amended defence and rely on affidavit granted; procedural orders made regarding pleadings and costs.
Legal Topics
Pleadings, Amendment of Pleadings
Civil Procedure Equity Pleadings Amendment of Pleadings

Case Brief

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Parties

Beryl Donna Sturesteps as the representative of the estate of the late George Osvald Sturesteps

First Plaintiff

Beryl Donna Sturesteps

Second Plaintiff

Dieb Peter Khoury

First Defendant

Benjamin and Khoury Pty Limited ACN 104 057 043

Second Defendant

Procedural Posture

Civil / Application for Leave to Amend Defence

Legal Issues

  1. 1 Whether the defendants should be granted leave to amend their defence
  2. 2 Whether the defendants should be allowed to rely on a further affidavit at trial
  3. 3 Whether the amendments or affidavit create prejudice to the plaintiffs

Ratio Decidendi

Leave to amend the defence and to rely on the further affidavit should be granted as any potential prejudice to the plaintiffs can be addressed at trial through objections and the amendments are necessary for the Court to determine the real questions in dispute, consistent with the overriding purpose of the Civil Procedure Act 2005 (NSW).

Court Disposition

Leave to file second further amended defence and rely on affidavit granted; procedural orders made regarding pleadings and costs.

Orders

  • The defendants are to file and serve the second further amended defence to second further amended statement of claim within 7 days.
  • The defendants have leave to rely upon at trial the affidavit of Dieb Peter Khoury sworn 26 February 2020 and its exhibits, subject to plaintiffs' rights to object to admissibility.