North East Equity Pty Ltd v Proud Nominees Pty Ltd (No 3) [2008] FCA 1430

North East Equity Pty Ltd v Proud Nominees Pty Ltd (No 3) [2008] FCA 1430

The amendment was refused because it raised a new negligence issue about the selection or supply of the flume elevators in 2002 and early 2003 that had not been specifically pleaded or litigated at trial, would have required giving Proud Machinery and Mr Proud an opportunity to reopen, and had the potential substantially to add to costs in a way not adequately remedied by a costs order. Costs were ordered on a party/party basis, with set-off, because North East Equity's claim had failed and its economic loss claim had no proper basis, but the respondents' inadmissible and unfocused witness statements also caused unnecessary time and expense, and issue-by-issue costs orders would be...

Jurisdiction
Australia
Judgment Date
02 September 2008
Procedural Posture
Civil Proceeding Involving Applicant's Claim and First Respondent's Cross Claim / Final Orders After Reasons for Judgment; Application to Amend Statement of Claim and Costs
Outcome
Application to amend rejected; applicant's claim dismissed; first respondent's cross-claim dismissed; costs orders made and time for notice of appeal extended.
Legal Topics
['amendment of Pleadings' 'costs Discretion' 'party/party Costs' 'indemnity Costs' 'cross Claim' 'res Ipsa Loquitur']
['civil Procedure' 'costs' 'negligence'] ['amendment of Pleadings' 'costs Discretion' 'party/party Costs' 'indemnity Costs' 'cross Claim' 'res Ipsa Loquitur']

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Procedural Posture

Civil Proceeding Involving Applicant's Claim and First Respondent's Cross Claim / Final Orders After Reasons for Judgment; Application to Amend Statement of Claim and Costs

Legal Issues

  1. 1 ['Whether North East Equity should be allowed to amend its statement of claim to plead that Proud Machinery and Mr Proud negligently procured and installed a flume elevator system not fit for its purpose.' "How costs should be awarded after dismissal of the applicant's claim and the first respondent's cross-claim."]

Ratio Decidendi

The amendment was refused because it raised a new negligence issue about the selection or supply of the flume elevators in 2002 and early 2003 that had not been specifically pleaded or litigated at trial, would have required giving Proud Machinery and Mr Proud an opportunity to reopen, and had the potential substantially to add to costs in a way not adequately remedied by a costs order. Costs were ordered on a party/party basis, with set-off, because North East Equity's claim had failed and its economic loss claim had no proper basis, but the respondents' inadmissible and unfocused witness statements also caused unnecessary time and expense, and issue-by-issue costs orders would be...

Court Disposition

Application to amend rejected; applicant's claim dismissed; first respondent's cross-claim dismissed; costs orders made and time for notice of appeal extended.

Orders

  • ["The applicant's claim be dismissed." "The first respondent's cross-claim be dismissed." "The applicant pay the respondents' costs of the proceedings." "The first respondent pay the applicant's costs of the cross-claim which may be set off against the costs payable under order 3." 'Pursuant to O 52 r 15(1)(a)(iii)...