Butterfield Services Pty Ltd v Bentley [2013] NSWSC 1217

Butterfield Services Pty Ltd v Bentley [2013] NSWSC 1217

Leave to amend was granted as the plaintiff sufficiently justified the delay and specificity of allegations, none of the grounds for resistance individually or collectively warranted refusal, and the interlocutory stage precluded definitive assessment of fraudulent concealment or prejudice to the defendant.

Parties
Applicant: Butterfield Services Pty Ltd; Respondent: Jonathon Bentley
Jurisdiction
Australia
Judgment Date
30 August 2013
Procedural Posture
Interlocutory Application / Motion for Leave to Amend Statement of Claim
Outcome
Leave to amend granted; security for costs ordered; costs orders made
Legal Topics
Amendment of Pleadings, Leave to Amend Outside Prescribed Period, Limitation of Actions, Fraudulent Concealment, Breach of Contract, Security for Costs
Practice and Procedure Contract Law Amendment of Pleadings Leave to Amend Outside Prescribed Period Limitation of Actions Fraudulent Concealment Breach of Contract Security for Costs

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Parties

Butterfield Services Pty Ltd

Applicant

Jonathon Bentley

Respondent

Procedural Posture

Interlocutory Application / Motion for Leave to Amend Statement of Claim

Legal Issues

  1. 1 Whether leave should be granted to amend statement of claim outside prescribed period
  2. 2 Whether allegation of fraudulent concealment is sufficiently pleaded and not doomed to failure
  3. 3 Whether alleged prejudice to defendant warrants refusal of leave

Ratio Decidendi

Leave to amend was granted as the plaintiff sufficiently justified the delay and specificity of allegations, none of the grounds for resistance individually or collectively warranted refusal, and the interlocutory stage precluded definitive assessment of fraudulent concealment or prejudice to the defendant.

Court Disposition

Leave to amend granted; security for costs ordered; costs orders made

Orders

  • Plaintiff has leave to file amended statement of claim by specified date in form provided to defendant's solicitors.
  • Plaintiff to provide additional security for defendant's costs of proceedings in sum of $30,000 by specified date by variation of mortgage, increasing total sum secured to $126,605.