Infocus Tax and Business Advisory Pty Ltd v Andrews (No 2) [2020] NSWSC 1072

Infocus Tax and Business Advisory Pty Ltd v Andrews (No 2) [2020] NSWSC 1072

The Court will not grant leave to amend the pleadings in the current draft because they fail to allege all material facts and particulars as required for proper interlocutory and substantive determination. Plaintiffs must pay defendants' costs occasioned by the amendment but not as a gross sum or on a forthwith basis. The defendants are entitled to an increase in security for costs, but the quantum is to be determined by further case management if not agreed. The Court declines to impose a condition precluding the calling of counsel as a witness on the current procedural posture. Orders to be refined upon receipt of draft short minutes from the parties.

Jurisdiction
Australia
Judgment Date
14 August 2020
Procedural Posture
Interlocutory Application / Procedural Ruling / Application for Leave to Amend Pleadings and Related Interlocutory Matters
Outcome
Leave to amend pleadings not granted in present form; directions for parties to confer and prepare appropriate short minutes of order; order to pay defendants' costs of and occasioned by the amendments, but not forthwith or in gross sum; order to increase amount of indemnity for security for costs by an appropriate...
Legal Topics
['pleadings Amendment' 'costs in Interlocutory Proceedings' 'security for Costs' 'enforceability of Exclusion Clauses' 'calling Counsel as Witness']
['civil Procedure' 'equity'] ['pleadings Amendment' 'costs in Interlocutory Proceedings' 'security for Costs' 'enforceability of Exclusion Clauses' 'calling Counsel as Witness']

Case Brief

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Procedural Posture

Interlocutory Application / Procedural Ruling / Application for Leave to Amend Pleadings and Related Interlocutory Matters

Legal Issues

  1. 1 ['Whether the plaintiffs should be granted leave to amend their pleadings and on what terms' 'Appropriate costs orders associated with the amendment of pleadings' 'Whether security for costs should be increased' 'Whether a condition should be imposed precluding the plaintiffs from calling opposing counsel as a witness']

Ratio Decidendi

The Court will not grant leave to amend the pleadings in the current draft because they fail to allege all material facts and particulars as required for proper interlocutory and substantive determination. Plaintiffs must pay defendants' costs occasioned by the amendment but not as a gross sum or on a forthwith basis. The defendants are entitled to an increase in security for costs, but the quantum is to be determined by further case management if not agreed. The Court declines to impose a condition precluding the calling of counsel as a witness on the current procedural posture. Orders to be refined upon receipt of draft short minutes from the parties.

Court Disposition

Leave to amend pleadings not granted in present form; directions for parties to confer and prepare appropriate short minutes of order; order to pay defendants' costs of and occasioned by the amendments, but not forthwith or in gross sum; order to increase amount of indemnity for security for costs by an appropriate...

Orders

  • ['Plaintiffs not granted leave to file draft amended pleadings in their present form.' "Plaintiffs to pay defendants' costs of and occasioned by the amendment of pleadings, not forthwith and not on a gross sum basis." 'Defendants entitled to an order requiring the plaintiffs (via Infocus Wealth) to increase the...