Qureshi v Haider [2006] NSWSC 1200

Qureshi v Haider [2006] NSWSC 1200

Although the application to amend was late and would prejudice the plaintiff by requiring further investigations in Pakistan, justice between the parties required that the specific issues be articulated by granting leave to file the amended defence, with prejudice addressed by costs. The trial should be vacated...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
03 November 2006
Procedural Posture
Application for Leave to File an Amended Defence in Proceedings Concerning a Grant of Administration and Whether the Defendant Was Divorced Under Pakistani Law / Interlocutory Application Before Trial
Outcome
Leave to file amended defence granted; trial vacated; defendant ordered to pay the plaintiff's costs of the application and costs thrown away by the adjournment.
Legal Topics
['amendment of Defence' 'vacation of Trial Dates' 'recognition of Foreign Divorce' 'natural Justice' 'public Policy' 'intestacy']
['civil Procedure' 'family Law' 'private International Law' 'succession'] ['amendment of Defence' 'vacation of Trial Dates' 'recognition of Foreign Divorce' 'natural Justice' 'public Policy' 'intestacy']

Source-derived case record

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Procedural Posture

Application for Leave to File an Amended Defence in Proceedings Concerning a Grant of Administration and Whether the Defendant Was Divorced Under Pakistani Law / Interlocutory Application Before Trial

Legal Issues

  1. 1 ['Whether leave should be granted to file an amended defence out of time to put in issue matters raised by an amended statement of claim.' 'Whether the plaintiff would be prejudiced by the late amendment because further investigations in Pakistan would be required.' 'Whether the listed trial should be vacated if leave to amend was granted.']

Ratio Decidendi

Although the application to amend was late and would prejudice the plaintiff by requiring further investigations in Pakistan, justice between the parties required that the specific issues be articulated by granting leave to file the amended defence, with prejudice addressed by costs. The trial should be vacated because further investigations concerning s 104(4) of the Family Law Act 1975 (Cth) might affect how the plaintiff's case and cross-examination were conducted.

Court Disposition

Leave to file amended defence granted; trial vacated; defendant ordered to pay the plaintiff's costs of the application and costs thrown away by the adjournment.

Orders

  • ['Leave to file in court an amended defence in the form initialled and dated by the judge and placed with the papers.' 'The hearing for two days commencing on Thursday 9 November 2006 is vacated.' "The defendant is to pay the plaintiff's costs of today and the plaintiff's costs thrown away by the adjournment." 'The...