Valverde v Inch [2019] NSWSC 1595

Valverde v Inch [2019] NSWSC 1595

Leave should be granted to amend the statement of claim and join new defendants, but on terms preserving their right to assert limitation defences and for all limitation issues, including the construction of s 65(2)(c), to be dealt with at final hearing when all facts are known.

Jurisdiction
Australia
Judgment Date
15 November 2019
Procedural Posture
Originating Process (amendment Application) / Interlocutory Determination of Application to Amend Statement of Claim and Join Parties
Outcome
Leave to amend statement of claim allowed, with terms preserving right of newly joined defendants to raise limitation defences.
Legal Topics
['amendment of Originating Process' 'addition of Parties' 'limitation of Actions' 'statutory Construction']
['civil Procedure' 'equity'] ['amendment of Originating Process' 'addition of Parties' 'limitation of Actions' 'statutory Construction']

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Procedural Posture

Originating Process (amendment Application) / Interlocutory Determination of Application to Amend Statement of Claim and Join Parties

Legal Issues

  1. 1 ['Whether leave should be granted to amend the statement of claim to join new defendants after expiry of limitation period' 'Whether Civil Procedure Act 2005 (NSW) s 65(2)(c) allows such amendment and whether it prevails over procedural rules' 'Whether limitation defences are available to new defendants on joinder, particularly in context of equitable causes of action']

Ratio Decidendi

Leave should be granted to amend the statement of claim and join new defendants, but on terms preserving their right to assert limitation defences and for all limitation issues, including the construction of s 65(2)(c), to be dealt with at final hearing when all facts are known.

Court Disposition

Leave to amend statement of claim allowed, with terms preserving right of newly joined defendants to raise limitation defences.

Orders

  • ['Plaintiff granted leave to file and serve amended statement of claim joining Mark Alexander Phillips and Nicholas John Symons as defendants by 6 December 2019.' 'Leave granted on terms that second and third defendants may plead any limitation defence and make submissions as to when amendment takes effect,...