Nitopi v Nitopi [2016] NSWSC 962

Nitopi v Nitopi [2016] NSWSC 962

Leave to amend was granted because the proposed contract, deceit and restitution pleadings fell within the existing factual substratum concerning loans obtained by the plaintiff allegedly at the defendant's behest, the relationship between mother and son, and the defendant's alleged role in administering the loans; the amendments did not occasion material prejudice to the defendant and were in the interests of justice to determine all relevant issues in one proceeding. The application to set aside the subpoena was refused because the disputed ANZ documents concerning Libra companies and loan applications could possibly throw light on issues in the proceeding and it was on the cards that...

Jurisdiction
Australia
Judgment Date
28 June 2016
Procedural Posture
Practice and Procedure Interlocutory Applications / Plaintiff's Notice of Motion for Leave to Amend Statement of Claim and Defendant's Notice of Motion to Set Aside Subpoena Heard Together
Outcome
Plaintiff's notice of motion to amend the statement of claim granted; defendant's notice of motion to set aside the subpoena refused; each party to pay its own costs of each application.
Legal Topics
['amendment of Statement of Claim' 'late Amendments' 'subpoena to Produce' 'setting Aside Subpoena' 'apparent Relevance' 'fishing Expedition' 'costs of Interlocutory Applications']
['practice and Procedure' 'civil Procedure' 'costs'] ['amendment of Statement of Claim' 'late Amendments' 'subpoena to Produce' 'setting Aside Subpoena' 'apparent Relevance' 'fishing Expedition' 'costs of Interlocutory Applications']

Case Brief

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Procedural Posture

Practice and Procedure Interlocutory Applications / Plaintiff's Notice of Motion for Leave to Amend Statement of Claim and Defendant's Notice of Motion to Set Aside Subpoena Heard Together

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to amend the statement of claim to plead contract, deceit and restitution causes of action and remove surplus evidentiary material.' 'Whether the proposed amendments should be refused because of delay, lateness, withdrawal of pleaded statements, lack of explanation, or the principles in Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175.' 'Whether paragraphs 1 and 3 of the subpoena to ANZ should be set aside as impermissible fishing, overbroad, irrelevant, or a substitute for discovery.' 'What costs orders should be made on the two interlocutory applications.']

Ratio Decidendi

Leave to amend was granted because the proposed contract, deceit and restitution pleadings fell within the existing factual substratum concerning loans obtained by the plaintiff allegedly at the defendant's behest, the relationship between mother and son, and the defendant's alleged role in administering the loans; the amendments did not occasion material prejudice to the defendant and were in the interests of justice to determine all relevant issues in one proceeding. The application to set aside the subpoena was refused because the disputed ANZ documents concerning Libra companies and loan applications could possibly throw light on issues in the proceeding and it was on the cards that...

Court Disposition

Plaintiff's notice of motion to amend the statement of claim granted; defendant's notice of motion to set aside the subpoena refused; each party to pay its own costs of each application.

Orders

  • ['Pursuant to s 64(1) of the Civil Procedure Act 2005, leave granted to the plaintiff to amend the statement of claim in the form of the draft document marked MFI 1 and the draft amended statement of claim attached to the notice of motion.' "The defendant's application to set aside paragraph 1 of the subpoena is...