Kuypers v Ashton Coal Operations Pty Ltd & Anor (No 2) [2015] NSWSC 1124

Kuypers v Ashton Coal Operations Pty Ltd & Anor (No 2) [2015] NSWSC 1124

Because the second defendant's notice of motion concerning expert evidence and responsibility for compliance with s 118A Water Act 1912 (NSW) could affect whether the second defendant would suffer real prejudice in meeting the plaintiff's additional particulars of negligence, the Court deferred deciding the plaintiff's amendment application until after the second defendant's motion was decided, and granted leave to file that motion and Mr Lee's affidavit.

Jurisdiction
Australia
Judgment Date
07 August 2015
Procedural Posture
Procedural and Other Ruling / Application to Amend Statement of Claim and Second Defendant's Application for Leave to File Notice of Motion and Affidavit
Outcome
Decision on the plaintiff's application to amend was deferred; the second defendant was granted leave to file the notice of motion and affidavit.
Legal Topics
['application to Amend Statement of Claim' 'particulars of Negligence' 'expert Evidence' 'water Act 1912 (nsw) S 118 A' 'non Delegable Duty of Care']
['civil Procedure' 'negligence'] ['application to Amend Statement of Claim' 'particulars of Negligence' 'expert Evidence' 'water Act 1912 (nsw) S 118 A' 'non Delegable Duty of Care']

Case Brief

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Procedural Posture

Procedural and Other Ruling / Application to Amend Statement of Claim and Second Defendant's Application for Leave to File Notice of Motion and Affidavit

Legal Issues

  1. 1 ["Whether the plaintiff's application to amend the statement of claim by adding further particulars of negligence against the second defendant should be decided immediately or deferred until the second defendant's notice of motion is determined." "Whether the second defendant should be granted leave to file its notice of motion and Mr Lee's affidavit sworn on 7 August 2015."]

Ratio Decidendi

Because the second defendant's notice of motion concerning expert evidence and responsibility for compliance with s 118A Water Act 1912 (NSW) could affect whether the second defendant would suffer real prejudice in meeting the plaintiff's additional particulars of negligence, the Court deferred deciding the plaintiff's amendment application until after the second defendant's motion was decided, and granted leave to file that motion and Mr Lee's affidavit.

Court Disposition

Decision on the plaintiff's application to amend was deferred; the second defendant was granted leave to file the notice of motion and affidavit.

Orders

  • ["I defer a decision on the plaintiff's application to amend his statement of claim until I have decided the second defendant's notice of motion." "I grant the second defendant leave to file the notice of motion, and Mr Lee's affidavit sworn on 7 August 2015 in court."]