Fabrizio v Wickham Hill Investment Pty Ltd [2018] NSWSC 612

Fabrizio v Wickham Hill Investment Pty Ltd [2018] NSWSC 612

Leave to withdraw the admissions was refused because the defendant, while under no disability and with legal assistance, made a clear and distinct formal admission that the plaintiff was a unit holder; the evidence did not establish that the admitted fact was likely to be false and on balance suggested it was likely to be true; the plaintiff had acted on the admission in preparing her evidence; and withdrawal would operate as a tactical step causing delay and increased costs contrary to the interests of justice and s 56 of the Civil Procedure Act, 2005 (NSW).

Jurisdiction
Australia
Judgment Date
10 May 2018
Procedural Posture
Civil Procedure Application for Leave to Amend Pleadings and Withdraw Admissions / Interlocutory Notice of Motion in the Applications List
Outcome
Leave to amend pleadings was to be granted except insofar as the amendments would withdraw the admission that the plaintiff was a unit holder in the Trust; leave to withdraw that admission was refused.
Legal Topics
['pleadings' 'amendment of Pleadings' 'admissions of Fact' 'withdrawal of Admissions' 'unit Trust Documents']
['civil Procedure' 'equity'] ['pleadings' 'amendment of Pleadings' 'admissions of Fact' 'withdrawal of Admissions' 'unit Trust Documents']

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Procedural Posture

Civil Procedure Application for Leave to Amend Pleadings and Withdraw Admissions / Interlocutory Notice of Motion in the Applications List

Legal Issues

  1. 1 ['Whether the Defendant/Cross Claimant should be granted leave to withdraw admissions made in its defence that the plaintiff was a unit holder in the Wickham Hill Unit Trust.' 'Whether the admitted fact was likely to be false or the admission was made inadvertently or without due consideration.' 'Whether permitting withdrawal of the admissions would further the interests of justice, having regard to prejudice, delay and costs.']

Ratio Decidendi

Leave to withdraw the admissions was refused because the defendant, while under no disability and with legal assistance, made a clear and distinct formal admission that the plaintiff was a unit holder; the evidence did not establish that the admitted fact was likely to be false and on balance suggested it was likely to be true; the plaintiff had acted on the admission in preparing her evidence; and withdrawal would operate as a tactical step causing delay and increased costs contrary to the interests of justice and s 56 of the Civil Procedure Act, 2005 (NSW).

Court Disposition

Leave to amend pleadings was to be granted except insofar as the amendments would withdraw the admission that the plaintiff was a unit holder in the Trust; leave to withdraw that admission was refused.

Orders

  • ["The parties are to confer to prepare short minutes of order granting leave to the defendant to amend its pleadings, except insofar as the amendments would have the effect of withdrawing the defendant's admission that the plaintiff was a unit holder in the Trust." "The short minutes of order are to be provided to...