Lewis v Martinez and the persons named in the Schedule (No 6) [2024] NSWSC 543

Lewis v Martinez and the persons named in the Schedule (No 6) [2024] NSWSC 543

There was no misapprehension of law or of the plaintiff's submissions in the principal judgment; the orders made appropriately preserved the plaintiff's ability to seek damages, including for loss of chance, and correctly set the dissolution date based on pleadings and discretion. The application failed to identify any error justifying variation under r 36.16, and there was no special circumstance.

Parties
Plaintiff: Gregory William Francis Lewis; Defendants: Juan Martinez and the persons named in the Schedule
Jurisdiction
Australia
Judgment Date
10 May 2024
Procedural Posture
Notice of Motion to Set Aside/vary Orders / Post Judgment, Application Under UCPR R 36.16
Outcome
Plaintiff's notice of motion dismissed. Plaintiff to pay defendants' costs of the motion, with costs not recoverable until completion of the whole proceedings.
Legal Topics
Variation or Setting Aside of Orders, Finality of Judgments, Costs, Partnership Dissolution, Judicial Discretion in Procedural Rulings
Civil Procedure Variation or Setting Aside of Orders Finality of Judgments Costs Partnership Dissolution Judicial Discretion in Procedural Rulings

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Parties

Gregory William Francis Lewis

Plaintiff

Juan Martinez and the persons named in the Schedule

Defendants

Procedural Posture

Notice of Motion to Set Aside/vary Orders / Post Judgment, Application Under UCPR R 36.16

Legal Issues

  1. 1 Whether the orders made in the principal judgment should be varied pursuant to UCPR r 36.16
  2. 2 Whether there was a misapprehension of law or of the plaintiff's submissions in the principal judgment
  3. 3 Whether orders excluded a loss of chance claim for damages

Ratio Decidendi

There was no misapprehension of law or of the plaintiff's submissions in the principal judgment; the orders made appropriately preserved the plaintiff's ability to seek damages, including for loss of chance, and correctly set the dissolution date based on pleadings and discretion. The application failed to identify any error justifying variation under r 36.16, and there was no special circumstance.

Court Disposition

Plaintiff's notice of motion dismissed. Plaintiff to pay defendants' costs of the motion, with costs not recoverable until completion of the whole proceedings.

Orders

  • The plaintiff's notice of motion filed on 15 April 2024 is dismissed.
  • The plaintiff is to pay the defendants costs of the motion.