WATSON v CONOLLY & ORS [2008] NSWSC 1345

WATSON v CONOLLY & ORS [2008] NSWSC 1345

Given the precise basis on which the plaintiff intended to pursue his claim, there was no basis for imposing the undertaking sought in paragraph 2(a). Any possible misunderstanding from the correspondence did not justify restricting the plaintiff's claim. Paragraph 1 was not pressed, paragraph 2(a) was refused, and the notice of motion was dismissed, with costs orders reflecting the plaintiff's success and an apportionment for the hearing day.

Jurisdiction
Australia
Judgment Date
12 December 2008
Procedural Posture
Common Law Proceedings; Application by Notice of Motion Concerning Amendment of the Statement of Claim / Directions Hearing / Notice of Motion
Outcome
The order sought in paragraph 2(a) of the notice of motion was declined and the notice of motion was dismissed.
Legal Topics
['amendment of Statement of Claim' 'conditions on Leave to Amend' 'particulars' 'removal of Liquidator' 'costs of Motion']
['civil Procedure' 'costs' 'insolvency'] ['amendment of Statement of Claim' 'conditions on Leave to Amend' 'particulars' 'removal of Liquidator' 'costs of Motion']

Case Brief

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Procedural Posture

Common Law Proceedings; Application by Notice of Motion Concerning Amendment of the Statement of Claim / Directions Hearing / Notice of Motion

Legal Issues

  1. 1 ["Whether the plaintiff should be required, as a condition of amendment, to undertake not to claim that specified grounds of Gzell J's removal decision were caused by negligence, wrongful act or breach of duty by the defendants." 'Whether the notice of motion should be dismissed after the defendants did not press paragraph 1 and failed on paragraph 2(a).' 'What costs orders should be made for the hearings on 25 September 2008, 14 November 2008 and 12 December 2008.']

Ratio Decidendi

Given the precise basis on which the plaintiff intended to pursue his claim, there was no basis for imposing the undertaking sought in paragraph 2(a). Any possible misunderstanding from the correspondence did not justify restricting the plaintiff's claim. Paragraph 1 was not pressed, paragraph 2(a) was refused, and the notice of motion was dismissed, with costs orders reflecting the plaintiff's success and an apportionment for the hearing day.

Court Disposition

The order sought in paragraph 2(a) of the notice of motion was declined and the notice of motion was dismissed.

Orders

  • ['The costs of 14 November 2008 are costs in the cause.' "The defendant is to pay the plaintiff's costs of the motion of 25 September 2008." "The defendant is to pay 75% of the plaintiff's costs of 12 December 2008 as assessed or agreed." 'The parties are directed to bring in directions for the further progress of...