Compton v Wilson [2007] NSWDC 66

Compton v Wilson [2007] NSWDC 66

Leave to amend was granted because, although Zurich had suffered disadvantage and expense from prior representations that the Property Trust was not the proper party, the risk that the proceedings would fail or be thwarted at trial because the proper parties had not been joined was sufficiently great. Zurich's prejudice was addressed by ordering the applicant to pay the respondent's costs of the motion, including any costs thrown away.

Jurisdiction
Australia
Judgment Date
02 April 2007
Procedural Posture
Civil Proceedings; Cross Claim for Indemnity From Liability Insurer / Application for Leave to File a Second Further Amended Cross Claim and for Costs
Outcome
Leave granted to the Salvation Army to amend the cross-claim; applicant to pay the respondent's costs of the motion including any costs thrown away.
Legal Topics
['amendment of Pleadings' 'joinder of Parties' 'unincorporated Association' 'property Trust' 'costs Thrown Away' 'liability Insurance Indemnity']
['civil Procedure' 'insurance' 'associations and Trusts'] ['amendment of Pleadings' 'joinder of Parties' 'unincorporated Association' 'property Trust' 'costs Thrown Away' 'liability Insurance Indemnity']

Case Brief

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Procedural Posture

Civil Proceedings; Cross Claim for Indemnity From Liability Insurer / Application for Leave to File a Second Further Amended Cross Claim and for Costs

Legal Issues

  1. 1 ['Whether leave should be granted to amend the cross-claim to add or substitute the Salvation Army (NSW) Property Trust and a representative of the unincorporated association known as the Salvation Army.' "Whether the prejudice and expense caused to Zurich by the Salvation Army's prior representations about the proper party should prevent or condition the amendment." 'What costs order should be made on the motion, including costs thrown away.']

Ratio Decidendi

Leave to amend was granted because, although Zurich had suffered disadvantage and expense from prior representations that the Property Trust was not the proper party, the risk that the proceedings would fail or be thwarted at trial because the proper parties had not been joined was sufficiently great. Zurich's prejudice was addressed by ordering the applicant to pay the respondent's costs of the motion, including any costs thrown away.

Court Disposition

Leave granted to the Salvation Army to amend the cross-claim; applicant to pay the respondent's costs of the motion including any costs thrown away.

Orders

  • ['By consent, Jeanette Seymour was substituted as a representative of the Salvation Army.' 'Leave granted to the Salvation Army to amend the cross-claim in the terms set out in the document referred to in the judgment.' "The applicant is to pay the respondent's costs of the motion, including any costs thrown away."]