Patakas v Bevan [2017] NSWSC 1592

Patakas v Bevan [2017] NSWSC 1592

The notation did not record an undertaking in lieu of a final or interlocutory injunction and was not an operative order; it recorded a deliberate forensic decision by the first defendant not to pursue the relevant costs assessment applications. Because that historical forensic decision could not be expunged from the record, leave to withdraw the statement or order the subject of the notation was refused. However, leave to amend the defence was granted because there was no real prejudice to the plaintiff, the evidence and hearing date would not be affected, and there was utility in avoiding possible later arguments based on estoppel, waiver or election, provided the first defendant...

Jurisdiction
Australia
Judgment Date
22 November 2017
Procedural Posture
Equity Proceedings; Civil Procedure Interlocutory Applications / Hearing of First Defendant's Notices of Motion Seeking Leave to Withdraw a Statement or Order the Subject of a Notation to Court Orders and Leave to Amend His Defence
Outcome
First defendant's application to withdraw the statement or order the subject of the notation was refused; leave to amend the defence was granted conditionally on an undertaking; costs orders were made against the first defendant.
Legal Topics
['pleadings Amendment' 'court Orders and Notations' 'undertakings to the Court' 'interlocutory Injunctions' 'costs Assessment Applications' 'forensic Decisions in Litigation']
['civil Procedure' 'equity'] ['pleadings Amendment' 'court Orders and Notations' 'undertakings to the Court' 'interlocutory Injunctions' 'costs Assessment Applications' 'forensic Decisions in Litigation']

Case Brief

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Procedural Posture

Equity Proceedings; Civil Procedure Interlocutory Applications / Hearing of First Defendant's Notices of Motion Seeking Leave to Withdraw a Statement or Order the Subject of a Notation to Court Orders and Leave to Amend His Defence

Legal Issues

  1. 1 ['Whether the notation made by Sackar J to the orders of 3 February 2017 recorded an undertaking to the Court in lieu of an injunction, an open offer, or merely a forensic position taken by the first defendant.' 'Whether the Court should grant leave to the first defendant to withdraw the statement or offer said to be the subject of the notation.' 'Whether the first defendant should be granted leave to amend his defence to remove references to the notation and related matters.']

Ratio Decidendi

The notation did not record an undertaking in lieu of a final or interlocutory injunction and was not an operative order; it recorded a deliberate forensic decision by the first defendant not to pursue the relevant costs assessment applications. Because that historical forensic decision could not be expunged from the record, leave to withdraw the statement or order the subject of the notation was refused. However, leave to amend the defence was granted because there was no real prejudice to the plaintiff, the evidence and hearing date would not be affected, and there was utility in avoiding possible later arguments based on estoppel, waiver or election, provided the first defendant...

Court Disposition

First defendant's application to withdraw the statement or order the subject of the notation was refused; leave to amend the defence was granted conditionally on an undertaking; costs orders were made against the first defendant.

Orders

  • ["Refuse first defendant's application for the relief sought in prayer 2 of first defendant's notice of motion filed 29 August 2017." 'Upon the undertaking of the first defendant that he will not seek leave further to amend his cross-claim in these proceedings to include any relief in relation to costs assessment...