National Australia Bank Ltd v C H Protheroe Pty Ltd [2017] NSWSC 387

National Australia Bank Ltd v C H Protheroe Pty Ltd [2017] NSWSC 387

Leave to amend the defence and cross-claim is allowed only to the extent amendments clarify existing pleaded issues or allege unconscionability unrelated to the Banking Code. Leave to add new claims regarding breaches of the Banking Code and unconscionability based on the Code is refused due to significant, unexplained delay, non-compliance with court directions, lack of supporting evidence, and likely significant prejudice and delay to the Plaintiff.

Parties
Plaintiff/cross Defendant: National Australia Bank Ltd; First Defendant: C H Protheroe Pty Ltd; Second Defendant: Colin Henry Protheroe
Jurisdiction
Australia
Judgment Date
13 April 2017
Procedural Posture
Possession Proceedings and Cross Claim / Interlocutory Application—leave to Amend Defence and Cross Claim
Outcome
Leave to amend granted in part; amendments relating to Banking Code refused; costs awarded to Plaintiff.
Legal Topics
Pleadings Amendment, Contracts Review Act, Unconscionable Conduct, Banking Code of Practice
Civil Procedure Pleadings Amendment Contracts Review Act Unconscionable Conduct Banking Code of Practice

Case Brief

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Parties

National Australia Bank Ltd

Plaintiff/cross Defendant

C H Protheroe Pty Ltd

First Defendant

Colin Henry Protheroe

Second Defendant

Procedural Posture

Possession Proceedings and Cross Claim / Interlocutory Application—leave to Amend Defence and Cross Claim

Legal Issues

  1. 1 Whether the Second Defendant should have leave to amend the defence and cross-claim to include new allegations including breach of the Banking Code of Practice and unconscionable conduct
  2. 2 Whether the proposed amendments would cause undue delay or prejudice to the Plaintiff
  3. 3 Whether explanation for delay in amendment was sufficient

Ratio Decidendi

Leave to amend the defence and cross-claim is allowed only to the extent amendments clarify existing pleaded issues or allege unconscionability unrelated to the Banking Code. Leave to add new claims regarding breaches of the Banking Code and unconscionability based on the Code is refused due to significant, unexplained delay, non-compliance with court directions, lack of supporting evidence, and likely significant prejudice and delay to the Plaintiff.

Court Disposition

Leave to amend granted in part; amendments relating to Banking Code refused; costs awarded to Plaintiff.

Orders

  • The Second Defendant is given leave to file and serve an amended defence in the form annexed to the affidavit of Joel Lewis Hubbard sworn 29 March 2017 omitting specific portions as detailed in order 1.
  • The Second Defendant is given leave to file and serve an amended cross-claim in the form annexed to the affidavit of Joel Lewis Hubbard sworn 29 March 2017.