Schacht v Thompson and Staunton trading as Staunton & Thompson Lawyers (No. 1) [2012] NSWSC 168

Schacht v Thompson and Staunton trading as Staunton & Thompson Lawyers (No. 1) [2012] NSWSC 168

The Defendants failed to comply with directions regarding filing amended Defence, gave very late notice of application to rely on amendments and to call a witness, and proposed amendments went beyond the leave granted; permitting reliance would disrupt the hearing and undermine the overriding purpose of the Civil Procedure Act 2005; leave refused for paragraphs 26(b)(iii) through to (vi).

Parties
Plaintiff: Daniel Schacht; Defendants: Bruce Lockhart Thompson and Dennis Michael Staunton trading as Staunton and Thompson Lawyers
Jurisdiction
Australia
Judgment Date
27 February 2012
Procedural Posture
Professional Negligence Claim / Interlocutory Application at Trial
Outcome
Defendants' application to rely upon paragraphs 26(b)(iii) through to (vi) of pleading filed on 22 February 2012 is refused.
Legal Topics
Leave to Amend Pleadings, Expert Evidence, Application to Call Witness, Compliance With Court Directions
Civil Procedure Professional Negligence Family Law Leave to Amend Pleadings Expert Evidence Application to Call Witness Compliance With Court Directions

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Parties

Daniel Schacht

Plaintiff

Bruce Lockhart Thompson and Dennis Michael Staunton trading as Staunton and Thompson Lawyers

Defendants

Procedural Posture

Professional Negligence Claim / Interlocutory Application at Trial

Legal Issues

  1. 1 Whether Defendants should be granted leave to rely on amendments to the Defence filed out of time
  2. 2 Whether Defendants should be permitted to call Plaintiff's former wife as witness without proper notice or affidavit

Ratio Decidendi

The Defendants failed to comply with directions regarding filing amended Defence, gave very late notice of application to rely on amendments and to call a witness, and proposed amendments went beyond the leave granted; permitting reliance would disrupt the hearing and undermine the overriding purpose of the Civil Procedure Act 2005; leave refused for paragraphs 26(b)(iii) through to (vi).

Court Disposition

Defendants' application to rely upon paragraphs 26(b)(iii) through to (vi) of pleading filed on 22 February 2012 is refused.

Orders

  • Defendants must serve a Defence to the Amended Statement of Claim in accordance with MFI1, excluding paragraphs 26(b)(iii) through to (vii), 35 and 36, no later than 9.30am tomorrow.
  • Costs of this application are reserved.