Frontier Assets Pty Limited v Fishburn [2011] NSWSC 1298

Frontier Assets Pty Limited v Fishburn [2011] NSWSC 1298

Leave to file the fourth further amended statement of claim was granted because the proposed allegation added little factually to the existing professional negligence claim, the hearing had not been fixed and the amendment was unlikely to delay the ultimate determination of the proceedings. Any additional expert evidence required and any prejudice to the defendants did not outweigh the plaintiff's entitlement to plead its case, having regard to ss 56, 57, 58 and 64 of the Civil Procedure Act 2005.

Jurisdiction
Australia
Judgment Date
02 November 2011
Procedural Posture
Professional Negligence Proceedings Arising From Advice and Action Concerning a Failed Real Estate Sale / Interlocutory Motion for Leave to File a Fourth Further Amended Statement of Claim
Outcome
Plaintiff granted leave to file a fourth further amended statement of claim; costs of the motion to be costs in the cause; plaintiff to pay defendants' costs thrown away by any amendment.
Legal Topics
['amendment of Pleadings' 'case Management' 'leave to Amend Statement of Claim' 'professional Negligence by Solicitors and Counsel' 'loss of Bargain Damages']
['practice and Procedure' 'professional Negligence' 'civil Procedure'] ['amendment of Pleadings' 'case Management' 'leave to Amend Statement of Claim' 'professional Negligence by Solicitors and Counsel' 'loss of Bargain Damages']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Professional Negligence Proceedings Arising From Advice and Action Concerning a Failed Real Estate Sale / Interlocutory Motion for Leave to File a Fourth Further Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to file a fourth further amended statement of claim.' "Whether case management considerations under the Civil Procedure Act 2005 outweighed the plaintiff's ability to plead an alleged continuing breach of duty." 'Whether the proposed amendment would cause delay or prejudice to the defendants.']

Ratio Decidendi

Leave to file the fourth further amended statement of claim was granted because the proposed allegation added little factually to the existing professional negligence claim, the hearing had not been fixed and the amendment was unlikely to delay the ultimate determination of the proceedings. Any additional expert evidence required and any prejudice to the defendants did not outweigh the plaintiff's entitlement to plead its case, having regard to ss 56, 57, 58 and 64 of the Civil Procedure Act 2005.

Court Disposition

Plaintiff granted leave to file a fourth further amended statement of claim; costs of the motion to be costs in the cause; plaintiff to pay defendants' costs thrown away by any amendment.

Orders

  • ['The plaintiff has leave to file a fourth further amended statement of claim in the form relied upon during the course of the motion.' 'Costs of the motion be costs in the cause.' "The plaintiff pay the defendants' costs thrown away by any amendment."]