Kim v Lee & Ors (No 3) [2006] NSWSC 1213

Kim v Lee & Ors (No 3) [2006] NSWSC 1213

Although the proposed breach of warranty of authority claims were arguable, the amendment was sought at a very late stage, effectively at the close of the plaintiff's case. The resulting prejudice to the defendants, including conflicts requiring separate representation, limitations on prior cross-examination, likely adjournment until August or September 2007, and worsening of already failing memories, could not be compensated by a costs order. The justice of the matter therefore required refusal of leave.

Jurisdiction
Australia
Judgment Date
14 November 2006
Procedural Posture
Civil Proceedings Seeking Declarations Concerning Alleged Settlement of District Court Defamation Proceedings / Application During Trial, at the Conclusion of Oral Evidence in the Plaintiff's Case, for Leave to File an Amended Statement of Claim
Outcome
Leave to file amended statement of claim refused.
Legal Topics
['amendment of Pleadings' 'leave to Amend Statement of Claim' 'breach of Warranty of Authority' 'settlement Agreement' 'prejudice From Late Amendment' 'case Management']
['civil Procedure' 'contract Law' 'agency' 'defamation'] ['amendment of Pleadings' 'leave to Amend Statement of Claim' 'breach of Warranty of Authority' 'settlement Agreement' 'prejudice From Late Amendment' 'case Management']

Case Brief

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Procedural Posture

Civil Proceedings Seeking Declarations Concerning Alleged Settlement of District Court Defamation Proceedings / Application During Trial, at the Conclusion of Oral Evidence in the Plaintiff's Case, for Leave to File an Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave at the close of oral evidence to amend the statement of claim to add claims for damages for breach of warranty of authority against the third and second defendants.' 'Whether the proposed amendments would create conflicts requiring separate representation for the second and third defendants.' 'Whether prejudice from limited cross-examination and the striking out of affidavit material could be compensated by costs.' 'Whether delay caused by an adjournment and the risk of failing memories justified refusing leave.']

Ratio Decidendi

Although the proposed breach of warranty of authority claims were arguable, the amendment was sought at a very late stage, effectively at the close of the plaintiff's case. The resulting prejudice to the defendants, including conflicts requiring separate representation, limitations on prior cross-examination, likely adjournment until August or September 2007, and worsening of already failing memories, could not be compensated by a costs order. The justice of the matter therefore required refusal of leave.

Court Disposition

Leave to file amended statement of claim refused.

Orders

  • ['Leave to file in Court the amended statement of claim declined.']