Moss v GIO Holdings Limited [1999] NSWSC 23

Moss v GIO Holdings Limited [1999] NSWSC 23

Despite the long delay and lack of adequate explanation by the defendant for seeking the amendment, there is insufficient evidence of actual prejudice to the plaintiff and the amendment does not change substantive issues or require further discovery. Therefore, leave is granted to amend the Defence, and the plaintiff is awarded party/party costs of the application, with leave to proceed to assessment forthwith.

Parties
Plaintiff: Christopher Stephen Moss; Defendant: GIO Holdings Limited
Jurisdiction
Australia
Judgment Date
05 February 1999
Procedural Posture
Civil / Interlocutory Application for Leave to Amend Defence
Outcome
Leave granted to defendant to file Amended Defence. Defendant to pay plaintiff’s costs of the motion on a party/party basis. Leave for plaintiff to assess costs forthwith. Matter stood over.
Legal Topics
Amendment of Pleadings, Costs, Delay, Discretion to Amend
Civil Procedure Amendment of Pleadings Costs Delay Discretion to Amend

Case Brief

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Parties

Christopher Stephen Moss

Plaintiff

GIO Holdings Limited

Defendant

Procedural Posture

Civil / Interlocutory Application for Leave to Amend Defence

Legal Issues

  1. 1 Whether leave should be granted to the defendant to file an Amended Defence nearly ten years after the original defence
  2. 2 Whether the plaintiff should have costs of the notice of motion to amend defence

Ratio Decidendi

Despite the long delay and lack of adequate explanation by the defendant for seeking the amendment, there is insufficient evidence of actual prejudice to the plaintiff and the amendment does not change substantive issues or require further discovery. Therefore, leave is granted to amend the Defence, and the plaintiff is awarded party/party costs of the application, with leave to proceed to assessment forthwith.

Court Disposition

Leave granted to defendant to file Amended Defence. Defendant to pay plaintiff’s costs of the motion on a party/party basis. Leave for plaintiff to assess costs forthwith. Matter stood over.

Orders

  • Leave granted to defendant to file Amended Defence by 12 February 1999
  • Defendant to pay plaintiff’s party/party costs of the notice of motion