Toohey v Toohey [2020] NSWSC 1854

Toohey v Toohey [2020] NSWSC 1854

Leave to amend the defence to add a limitation defence was granted because the amendment raised a substantial arguable point, would not likely cause irreparable procedural prejudice or delay, and further procedural steps (including replying to the new defence) could occur prior to the fixed hearing date. The applicant's delay was due to oversight, and strictly requiring affidavit evidence of this would not serve the Court's obligations for efficient, just resolution. Costs thrown away by the amendment are to be paid by the cross-defendant.

Jurisdiction
Australia
Judgment Date
16 December 2020
Procedural Posture
Amendment Application in Partnership/equity Proceedings / Interlocutory (motion for Leave to Amend Defence to Cross Claim)
Outcome
Leave to amend defence granted, with costs orders as specified.
Legal Topics
['pleadings Amendment' 'limitation Defence' 'indemnity for Partnership Expenses' 'partnership Winding Up']
['equity' 'civil Procedure' 'partnership'] ['pleadings Amendment' 'limitation Defence' 'indemnity for Partnership Expenses' 'partnership Winding Up']

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Procedural Posture

Amendment Application in Partnership/equity Proceedings / Interlocutory (motion for Leave to Amend Defence to Cross Claim)

Legal Issues

  1. 1 ['Whether leave to amend the defence to plead a limitation defence should be granted' 'Operation of Limitation Act 1969 (NSW) s 14 or s 15 in partnership context' 'Whether delay in bringing amendment justified or causes prejudice']

Ratio Decidendi

Leave to amend the defence to add a limitation defence was granted because the amendment raised a substantial arguable point, would not likely cause irreparable procedural prejudice or delay, and further procedural steps (including replying to the new defence) could occur prior to the fixed hearing date. The applicant's delay was due to oversight, and strictly requiring affidavit evidence of this would not serve the Court's obligations for efficient, just resolution. Costs thrown away by the amendment are to be paid by the cross-defendant.

Court Disposition

Leave to amend defence granted, with costs orders as specified.

Orders

  • ['Grant leave to the cross-defendant to file an amended defence to the cross-claim substantially in accordance with the proposed amended defence (annexure A to Cleary affidavit 15 Dec 2020), also relying in the alternative on s 14 Limitation Act.' "Grant liberty to cross-claimant to apply on three days' notice to...