Abram v National Australia Bank Ltd [2001] NSWSC 916

Although the bank had a very strong case against the proposed pleading and the plaintiff had delayed for more than twelve months without producing an originating process in correct form, the interests of justice required that he be given a final opportunity to file a further proposed amended statement of claim drafted after obtaining legal advice. This gave effect to the opportunity contemplated by Master Malpass and was reinforced by comments in the Court of Appeal critical of the bank's contempt application. No case was made out for extending time to appeal from Master Malpass' decision, and the motion against the State was dismissed because the plaintiff did not intend to pursue that...

Jurisdiction: Australia
Judgment Date: 18 October 2001
Procedural Posture: Application for Review of a Decision of an Assistant Registrar Refusing Leave to Amend a Statement of Claim, With an Application for Extension of Time to Appeal From Orders of Master Malpass and an Alternative Application for Leave to File an Amended Statement of Claim. / Review Under Part 61 R 3 of the Supreme Court Rules; Interlocutory Applications Concerning Pleadings.
Outcome: The Assistant Registrar's decision was set aside; the plaintiff was directed to file a proposed amended statement of claim within 28 days; the plaintiff's notice of motion was otherwise dismissed; the second defendant's notice of motion was dismissed; and the plaintiff was ordered to pay the respondents' costs of...
Legal Topics: ["review of Registrar's Decision" 'amendment of Statement of Claim' 'strike Out of Pleadings' 'extension of Time to Appeal' 'malicious Prosecution']

['civil Procedure' 'torts'] ["review of Registrar's Decision" 'amendment of Statement of Claim' 'strike Out of Pleadings' 'extension of Time to Appeal' 'malicious Prosecution']

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Procedural Posture

Application for Review of a Decision of an Assistant Registrar Refusing Leave to Amend a Statement of Claim, With an Application for Extension of Time to Appeal From Orders of Master Malpass and an Alternative Application for Leave to File an Amended Statement of Claim. / Review Under Part 61 R 3 of the Supreme Court Rules; Interlocutory Applications Concerning Pleadings.

Legal Issues

1 ["Whether the decision of Assistant Registrar Howe dismissing the plaintiff's application for leave to amend his statement of claim should be set aside." 'Whether the plaintiff should be given a final opportunity to file a proposed amended statement of claim.' 'Whether time should be extended to appeal from the orders made by Master Malpass.' 'Whether the notice of motion against the State of New South Wales should be dismissed after the plaintiff indicated he would not pursue that claim.']

Ratio Decidendi

Court Disposition

The Assistant Registrar's decision was set aside; the plaintiff was directed to file a proposed amended statement of claim within 28 days; the plaintiff's notice of motion was otherwise dismissed; the second defendant's notice of motion was dismissed; and the plaintiff was ordered to pay the respondents' costs of...

Orders

["As between the applicant/plaintiff and the respondent/second defendant the second defendant's notice of motion is dismissed." "Order the applicant/plaintiff to pay the respondent's/second defendant's costs of the motion." 'The decision of Assistant Registrar Howe of 28 April 2001 is set aside.' 'Direct the...