Wright v Optus Administration & Anor (No 2) [2013] NSWSC 1709

Wright v Optus Administration & Anor (No 2) [2013] NSWSC 1709

The first defendant did not establish any material misapprehension of law or fact in the previous interlocutory decision. The judge maintained the finding that the first defendant had abandoned the limitation defence in May 2010, that both parties had brought the case to trial on the assumption that the limitation issue was spent, and that allowing the defence to be reasserted would be unjustifiably oppressive. No new, additional or fresh evidence justified recall of the order or leave to re-plead the s 18A defence.

Jurisdiction
Australia
Judgment Date
21 November 2013
Procedural Posture
Interlocutory Application / Notice of Motion by the First Defendant to Recall an Interlocutory Order Striking Out Paragraph 26 of Its Further Amended Defence and Alternatively to Re Plead a Defence Under S 18 a Limitation Act 1969 (nsw)
Outcome
The first defendant's motion filed in Court on the 18th of November 2013 is dismissed.
Legal Topics
['recall of Interlocutory Orders' 'misapprehension of Fact or Law' 'striking Out Pleading' 'leave to Amend Defence' 'limitation Defence Under S 18 a Limitation Act 1969 (nsw)']
['practice and Procedure' 'limitation of Actions'] ['recall of Interlocutory Orders' 'misapprehension of Fact or Law' 'striking Out Pleading' 'leave to Amend Defence' 'limitation Defence Under S 18 a Limitation Act 1969 (nsw)']

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Procedural Posture

Interlocutory Application / Notice of Motion by the First Defendant to Recall an Interlocutory Order Striking Out Paragraph 26 of Its Further Amended Defence and Alternatively to Re Plead a Defence Under S 18 a Limitation Act 1969 (nsw)

Legal Issues

  1. 1 ["Whether the order pronounced on 15 November 2013 striking out paragraph 26 of the first defendant's further amended defence should be recalled on the basis of alleged misapprehensions of law or fact." 'Whether the first defendant should be granted leave to amend or re-plead a limitation defence under s 18A Limitation Act 1969 (NSW).' 'Whether allowing the first defendant to reassert a limitation defence previously abandoned would be unjustifiably oppressive in the circumstances.']

Ratio Decidendi

The first defendant did not establish any material misapprehension of law or fact in the previous interlocutory decision. The judge maintained the finding that the first defendant had abandoned the limitation defence in May 2010, that both parties had brought the case to trial on the assumption that the limitation issue was spent, and that allowing the defence to be reasserted would be unjustifiably oppressive. No new, additional or fresh evidence justified recall of the order or leave to re-plead the s 18A defence.

Court Disposition

The first defendant's motion filed in Court on the 18th of November 2013 is dismissed.

Orders

  • ["The first defendant's motion filed in Court on the 18th of November 2013 is dismissed."]