CIT Group (Australia) Limited v George Karabassis [2008] NSWDC 87

CIT Group (Australia) Limited v George Karabassis [2008] NSWDC 87

Leave to withdraw the admissions was granted because there was a bona fide dispute about what documents comprised the Agreement and whether the First Defendant signed some of them, making it unjust to prevent him from contesting whether the Plaintiff and the Company entered into the Agreement. The Plaintiff's...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
19 May 2008
Procedural Posture
Civil Proceedings on a Guarantee and Indemnity / First Defendant's Application for Leave to Withdraw Admissions and File an Amended Defence
Outcome
Leave granted for the First Defendant to withdraw admissions and file an amended defence; Plaintiff directed to amend its Statement of Claim; costs orders made.
Legal Topics
['withdrawal of Admissions' 'amendment of Pleadings' 'guarantee and Indemnity' 'costs Thrown Away' 'indemnity Costs']
['civil Procedure' 'contract Law'] ['withdrawal of Admissions' 'amendment of Pleadings' 'guarantee and Indemnity' 'costs Thrown Away' 'indemnity Costs']

Source-derived case record

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Procedural Posture

Civil Proceedings on a Guarantee and Indemnity / First Defendant's Application for Leave to Withdraw Admissions and File an Amended Defence

Legal Issues

  1. 1 ['Whether the First Defendant should have leave to withdraw admissions made by the Defence filed on 19 May 2005, including an express admission about the Agreement and deemed admissions arising from not pleading to paragraphs 5-15 and 19 of the Statement of Claim.' 'Whether the absence of affidavit evidence prevented the grant of leave.' 'Whether prejudice to the Plaintiff and the overriding purpose in s 56 of the Civil Procedure Act 2005 justified refusing leave.' 'Whether the Plaintiff should amend its Statement of Claim to reflect the reduced quantum of its claim.']

Ratio Decidendi

Leave to withdraw the admissions was granted because there was a bona fide dispute about what documents comprised the Agreement and whether the First Defendant signed some of them, making it unjust to prevent him from contesting whether the Plaintiff and the Company entered into the Agreement. The Plaintiff's prejudice was limited to thrown away costs and could be remedied by an indemnity costs order. Because the Plaintiff accepted that the pleaded claim of $397,339.78 would be reduced by approximately $91,000, the Plaintiff was required to amend its pleading and the First Defendant was also permitted to contest quantum by withdrawing the relevant admissions.

Court Disposition

Leave granted for the First Defendant to withdraw admissions and file an amended defence; Plaintiff directed to amend its Statement of Claim; costs orders made.

Orders

  • ['Direct the Plaintiff to file and serve an Amended Statement of Claim within 7 days.' 'Direct the First Defendant to file and serve an Amended Defence to the Amended Statement of Claim in accordance with these reasons within 7 days thereafter.' "Order the First Defendant to pay the Plaintiff's costs thrown away as...