Malo v South Sydney District Junior Rugby Football League [2008] NSWSC 552

Malo v South Sydney District Junior Rugby Football League [2008] NSWSC 552

Leave to amend was granted because the proposed s74 Trade Practices Act 1974 pleading was not caught by s82, did not create a fresh cause of action but added further implied terms to the pleaded contract, raised triable factual issues about the contractual and trading characteristics required for s74, and did not cause prejudice sufficient to refuse an amendment under s64 of the Civil Liability Act 2005.

Jurisdiction
Australia
Judgment Date
05 June 2008
Procedural Posture
Application for Leave to Amend Statement of Claim in Personal Injury Proceedings / Leave to File Fourth Amended Statement of Claim
Outcome
The plaintiff was granted leave to file a Fourth Amended Statement of Claim and was ordered to pay the defendants' costs of the application.
Legal Topics
['amendment to Statement of Claim' 'section 74 Trade Practices Act 1974 Implied Terms' 'limitation Under Ss 82 and 87 F Trade Practices Act 1974' 'fresh Cause of Action' 'futility of Amendment' 'prejudice From Delay']
['civil Procedure' 'trade Practices' 'limitation of Actions' 'personal Injury' 'contract'] ['amendment to Statement of Claim' 'section 74 Trade Practices Act 1974 Implied Terms' 'limitation Under Ss 82 and 87 F Trade Practices Act 1974' 'fresh Cause of Action' 'futility of Amendment' 'prejudice From Delay']

Case Brief

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Procedural Posture

Application for Leave to Amend Statement of Claim in Personal Injury Proceedings / Leave to File Fourth Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to file a Fourth Amended Statement of Claim relying on s74 of the Trade Practices Act 1974.' 'Whether the s82 or s87F limitation provisions of the Trade Practices Act 1974 applied to the proposed s74 amendment.' 'Whether the proposed amendment raised a fresh cause of action requiring the plaintiff to satisfy s65 of the Civil Liability Act 2005.' 'Whether the proposed amendment was futile because the plaintiff could not establish the characteristics necessary for s74 to apply.' 'Whether the defendants would suffer prejudice if the amendment were allowed.']

Ratio Decidendi

Leave to amend was granted because the proposed s74 Trade Practices Act 1974 pleading was not caught by s82, did not create a fresh cause of action but added further implied terms to the pleaded contract, raised triable factual issues about the contractual and trading characteristics required for s74, and did not cause prejudice sufficient to refuse an amendment under s64 of the Civil Liability Act 2005.

Court Disposition

The plaintiff was granted leave to file a Fourth Amended Statement of Claim and was ordered to pay the defendants' costs of the application.

Orders

  • ['The plaintiff is granted leave to file a Fourth Amended Statement of Claim.' "The plaintiff is to pay the defendants' costs of this application."]