Cashflow Advantage Australasia Pty Ltd v Bannister [2018] NSWSC 1610

Cashflow Advantage Australasia Pty Ltd v Bannister [2018] NSWSC 1610

The existing and proposed pleadings alleged the guarantees, their material terms, breach and the amounts outstanding, and it was not necessary to plead the dates of particular advances to the debtor either to establish the cause of action against the guarantors or to permit consideration of limitation defences. The plaintiff had not failed to prosecute the proceedings with due despatch, as delay was explained by service difficulties and the solicitor had been endeavouring to progress the matter. Leave to amend was appropriate, subject to excluding paragraphs that did not comply with UCPR, r 14.9, while the commencement date of the added plaintiff's claim under s 65 of the Civil Procedure...

Jurisdiction
Australia
Judgment Date
24 October 2018
Procedural Posture
Common Law Proceedings Claiming Monies Alleged to Be Due to the Plaintiff as Assignee of Debt Owed by Guarantors / Interlocutory Motions for Leave to Amend the Statement of Claim, Strike Out the Pleading And/or Dismiss the Proceedings
Outcome
Paidonexchange Pty Ltd was joined as a plaintiff; leave to amend was granted in part; the second and third defendants' strike-out and dismissal motion was dismissed; costs orders were made; and the question of the commencement date of the added plaintiff's proceedings was reserved.
Legal Topics
['pleading Requirements' 'amendment of Statement of Claim' 'joinder of Plaintiff' 'strike Out' 'dismissal for Want of Due Despatch' 'date From Which Amendment Takes Effect']
['practice and Procedure' 'limitation of Actions' 'guarantees' 'assignment of Debt'] ['pleading Requirements' 'amendment of Statement of Claim' 'joinder of Plaintiff' 'strike Out' 'dismissal for Want of Due Despatch' 'date From Which Amendment Takes Effect']

Case Brief

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Procedural Posture

Common Law Proceedings Claiming Monies Alleged to Be Due to the Plaintiff as Assignee of Debt Owed by Guarantors / Interlocutory Motions for Leave to Amend the Statement of Claim, Strike Out the Pleading And/or Dismiss the Proceedings

Legal Issues

  1. 1 ['Whether a claim by an assignee against guarantors had to plead the dates and amounts of all advances made to the debtor and dates of default.' 'Whether the statement of claim or proposed amended statement of claim should be struck out as deficient, embarrassing or an abuse of process.' 'Whether the proceedings should be dismissed for want of due despatch or under UCPR, r 13.4.' 'Whether leave should be granted to amend the statement of claim to add Paidonexchange Pty Ltd and another guarantee claim.' 'Whether the date from which the amendment should take effect should be determined at the interlocutory hearing.']

Ratio Decidendi

The existing and proposed pleadings alleged the guarantees, their material terms, breach and the amounts outstanding, and it was not necessary to plead the dates of particular advances to the debtor either to establish the cause of action against the guarantors or to permit consideration of limitation defences. The plaintiff had not failed to prosecute the proceedings with due despatch, as delay was explained by service difficulties and the solicitor had been endeavouring to progress the matter. Leave to amend was appropriate, subject to excluding paragraphs that did not comply with UCPR, r 14.9, while the commencement date of the added plaintiff's claim under s 65 of the Civil Procedure...

Court Disposition

Paidonexchange Pty Ltd was joined as a plaintiff; leave to amend was granted in part; the second and third defendants' strike-out and dismissal motion was dismissed; costs orders were made; and the question of the commencement date of the added plaintiff's proceedings was reserved.

Orders

  • ['Order that Paidonexchange Pty Ltd ACN 126 679 678 be joined as a plaintiff in the proceeding.' 'Subject to orders (3) and (4) below, grant leave to the plaintiff to file an amended statement of claim in the form of annexure "B" to the affidavit of Amanda Heard sworn 30 April 2018 (the draft pleading) and direct...