Michael Thomson & Anor v Hugh Williamson & Ors [2011] NSWSC 1630

Michael Thomson & Anor v Hugh Williamson & Ors [2011] NSWSC 1630

Although the defence in paragraph 95(e) was raised late and without a real explanation, it was seriously arguable, the plaintiffs' prejudice was not shown to be irremediable, and striking it out would deprive the defendants of a potentially substantial defence; the interests of justice favoured allowing the defence to remain.

Jurisdiction
Australia
Judgment Date
01 December 2011
Procedural Posture
Procedural and Other Ruling / Pre Trial Application by Plaintiffs to Strike Out Paragraph 95(e) of the Defence to the Second Further Amended Statement of Claim
Outcome
Plaintiffs' application to strike out paragraph 95(e) of the defence was declined.
Legal Topics
['strike Out of Defence Paragraph' 'leave to Raise New Matter in Defence' 'solicitors Scheme Limitation of Liability' 'professional Standards Act 1994 (nsw)' 'costs']
['practice and Procedure' 'professional Liability'] ['strike Out of Defence Paragraph' 'leave to Raise New Matter in Defence' 'solicitors Scheme Limitation of Liability' 'professional Standards Act 1994 (nsw)' 'costs']

Case Brief

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Procedural Posture

Procedural and Other Ruling / Pre Trial Application by Plaintiffs to Strike Out Paragraph 95(e) of the Defence to the Second Further Amended Statement of Claim

Legal Issues

  1. 1 ['Whether paragraph 95(e) of the defence raised new matters not consequential on amendments to the statement of claim and therefore required leave.' 'Whether leave should be granted to maintain a defence that any liability was limited by the Solicitors Scheme approved under the Professional Standards Act 1994 (NSW).' "Whether prejudice to the plaintiffs and the defendants' delay justified striking out the defence paragraph."]

Ratio Decidendi

Although the defence in paragraph 95(e) was raised late and without a real explanation, it was seriously arguable, the plaintiffs' prejudice was not shown to be irremediable, and striking it out would deprive the defendants of a potentially substantial defence; the interests of justice favoured allowing the defence to remain.

Court Disposition

Plaintiffs' application to strike out paragraph 95(e) of the defence was declined.

Orders

  • ['Grant leave to the plaintiff to further amend their statement of claim to plead a claim under (Cth) Trade Practices Act 1974, s 51AC. Any such further amended statement of claim to be filed by 22 December 2011.' 'Grant leave to the plaintiffs to file a reply by 15 December 2011.' 'Reserve liberty to the parties to...