Creary v Essential Energy;; Tathra Beach Motor Village Pty Ltd v Essential Energy;; Harris v Essential Energy;; Rowland v Essential Energy (No.2) [2024] NSWSC 56

Creary v Essential Energy;; Tathra Beach Motor Village Pty Ltd v Essential Energy;; Harris v Essential Energy;; Rowland v Essential Energy (No.2) [2024] NSWSC 56

Leave to amend to plead the Visibility Triangle was granted as the defendants did not demonstrate particular prejudice and the amendment aligned the pleading with evidence likely to be put before the Court. Leave to amend to plead the Dot Tree Window was refused as introduction at this late stage, after the relevant witness had become unavailable, would cause significant prejudice to the defendants as they could not properly respond to the new allegation.

Jurisdiction
Australia
Judgment Date
09 February 2024
Procedural Posture
Civil / Interlocutory Application for Leave to Amend Pleadings Prior to Final Hearing
Outcome
Leave to amend granted in part, otherwise dismissed; costs awarded to defendants
Legal Topics
['pleadings' 'amendment of Pleadings' 'prejudice' 'costs']
['civil Procedure'] ['pleadings' 'amendment of Pleadings' 'prejudice' 'costs']

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Procedural Posture

Civil / Interlocutory Application for Leave to Amend Pleadings Prior to Final Hearing

Legal Issues

  1. 1 ['Whether to grant the plaintiffs leave to amend the 5th Further Amended Statement of Claim close to final hearing' 'Whether amendments would cause prejudice to the defendants' 'Appropriateness of costs order when partial leave granted']

Ratio Decidendi

Leave to amend to plead the Visibility Triangle was granted as the defendants did not demonstrate particular prejudice and the amendment aligned the pleading with evidence likely to be put before the Court. Leave to amend to plead the Dot Tree Window was refused as introduction at this late stage, after the relevant witness had become unavailable, would cause significant prejudice to the defendants as they could not properly respond to the new allegation.

Court Disposition

Leave to amend granted in part, otherwise dismissed; costs awarded to defendants

Orders

  • ['Grant leave to the plaintiff to amend the 5th FASOC to add proposed paragraph 28(a)(i) subject to specific wording addition.' 'Decline leave to amend the 5th FASOC by insertion of proposed 28(a)(ii).' 'Otherwise dismiss the Notice of Motion filed 31 January 2024.' "Order plaintiffs to pay defendants' costs of and...