Helou v M & J Enterprises Australia Pty Ltd (No 5) [2017] NSWSC 921

Helou v M & J Enterprises Australia Pty Ltd (No 5) [2017] NSWSC 921

Leave to withdraw the specified admissions was granted because the admissions were made by operation of the rules rather than by a considered decision, the initial failure to respond was partly explained by Milosav Gligorijevic's serious illness and subsequent solicitor oversight, the cross-defendants had not changed position or suffered relevant detriment in reliance on the admissions, no indispensable fact established by Campbell J was identified that would prevent the monetary claims in the Second Further Amended Statement of Cross-Claim, and maintaining the admissions would unduly complicate the hearing. Leave to file the Second Further Amended Statement of Cross-Claim was granted...

Jurisdiction
Australia
Judgment Date
14 July 2017
Procedural Posture
Notice of Motion in Cross Claim Seeking Leave to Withdraw Admissions and Leave to File a Second Further Amended Statement of Cross Claim / Procedural Application Before Hearing of Outstanding Monetary Claims
Outcome
Motion granted; cross-claimants ordered to pay 70 per cent of the cross-defendants' costs of the motion.
Legal Topics
['withdrawal of Admissions' 'notice to Admit Facts and Documents' 'amendment of Cross Claim' 'issue Estoppel' 'costs of Motion']
['practice and Procedure' 'civil Procedure' 'costs'] ['withdrawal of Admissions' 'notice to Admit Facts and Documents' 'amendment of Cross Claim' 'issue Estoppel' 'costs of Motion']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion in Cross Claim Seeking Leave to Withdraw Admissions and Leave to File a Second Further Amended Statement of Cross Claim / Procedural Application Before Hearing of Outstanding Monetary Claims

Legal Issues

  1. 1 ['Whether the cross-claimants should be granted leave to withdraw deemed admissions arising from no response to a Notice to Admit Facts and Documents.' 'Whether withdrawal of the admissions would be precluded by reliance, detriment, or an estoppel arising from the earlier possession judgment.' 'Whether the proposed Second Further Amended Statement of Cross-Claim went beyond what Campbell J had permitted or was inadequately pleaded.' 'What costs order should be made where the successful cross-claimants sought an indulgence of the Court.']

Ratio Decidendi

Leave to withdraw the specified admissions was granted because the admissions were made by operation of the rules rather than by a considered decision, the initial failure to respond was partly explained by Milosav Gligorijevic's serious illness and subsequent solicitor oversight, the cross-defendants had not changed position or suffered relevant detriment in reliance on the admissions, no indispensable fact established by Campbell J was identified that would prevent the monetary claims in the Second Further Amended Statement of Cross-Claim, and maintaining the admissions would unduly complicate the hearing. Leave to file the Second Further Amended Statement of Cross-Claim was granted...

Court Disposition

Motion granted; cross-claimants ordered to pay 70 per cent of the cross-defendants' costs of the motion.

Orders

  • ['Leave is granted to the cross-claimants, Miloslav Gligorijevic and Jagoda Gligorijevic, to withdraw admissions 4, 8, 9, 10, 11, 12, 14, 15, 16, 17 and 19 in the Notice to Admit Facts and Documents, dated 14 October 2015, filed on behalf of George Helou.' "Leave is granted to the cross-claimants to file the Second...