HP Mercantile Pty Ltd v Clements [2014] NSWSC 213

HP Mercantile Pty Ltd v Clements [2014] NSWSC 213

Leave to amend was granted only for amendments that did not fairly raise new issues or cause material prejudice, but refused for amendments that would require the Plaintiff, shortly before trial and without adequate explanation for delay, to investigate new factual matters in voluminous documents or answer new representational issues involving a reversal of onus. Leave to make the out-of-time request to call Mr Purcell was granted because there was good reason, including the significance of the evidence, the complexity of the affidavit served, the comparatively limited delay, and sufficient time for arrangements had the Plaintiff wished to call him. However, the Court refused to direct...

Jurisdiction
Australia
Judgment Date
06 March 2014
Procedural Posture
Interlocutory Applications / Notice of Motion by the Defendant Seeking Leave to File a Fourth Further Amended Defence and Seeking Leave to Request, and an Order Directing, the Plaintiff to Call Mr Purcell as a Witness Before a Hearing Due to Commence on 11 March 2014
Outcome
Orders made granting the Defendant leave to file and serve a Fourth Further Amended Defence containing some but not all amendments sought; Defendant to pay costs thrown away by reason of the amendment; leave granted for the Defendant to make the request that the Plaintiff call Mr Purcell as a witness; application...
Legal Topics
['amendment of Pleadings' 'case Management' 'prejudice From Late Amendments' 'request to Call Witnesses' 'business Records' 'discretion to Compel Compliance With Request to Call Witness']
['civil Procedure' 'evidence'] ['amendment of Pleadings' 'case Management' 'prejudice From Late Amendments' 'request to Call Witnesses' 'business Records' 'discretion to Compel Compliance With Request to Call Witness']

Case Brief

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Procedural Posture

Interlocutory Applications / Notice of Motion by the Defendant Seeking Leave to File a Fourth Further Amended Defence and Seeking Leave to Request, and an Order Directing, the Plaintiff to Call Mr Purcell as a Witness Before a Hearing Due to Commence on 11 March 2014

Legal Issues

  1. 1 ['Whether the Defendant should have leave to file and serve a Fourth Further Amended Defence containing the proposed amendments shortly before trial.' 'Whether particular proposed amendments should be refused because they raised new factual issues causing prejudice to the Plaintiff at trial.' 'Whether the Defendant should have leave to make an out-of-time request under s 167 of the Evidence Act 1995 (NSW) that the Plaintiff call Mr Purcell as a witness.' 'Whether the Court should direct the Plaintiff to comply with the request to call Mr Purcell as a witness.']

Ratio Decidendi

Leave to amend was granted only for amendments that did not fairly raise new issues or cause material prejudice, but refused for amendments that would require the Plaintiff, shortly before trial and without adequate explanation for delay, to investigate new factual matters in voluminous documents or answer new representational issues involving a reversal of onus. Leave to make the out-of-time request to call Mr Purcell was granted because there was good reason, including the significance of the evidence, the complexity of the affidavit served, the comparatively limited delay, and sufficient time for arrangements had the Plaintiff wished to call him. However, the Court refused to direct...

Court Disposition

Orders made granting the Defendant leave to file and serve a Fourth Further Amended Defence containing some but not all amendments sought; Defendant to pay costs thrown away by reason of the amendment; leave granted for the Defendant to make the request that the Plaintiff call Mr Purcell as a witness; application...

Orders

  • ['The Defendant, Mr Clements, have leave to file and serve a Fourth Further Amended Defence in accordance with this judgment by 4.00pm today.' 'The Defendant to pay the costs thrown away by reason of the amendment.' 'The Plaintiff have leave to file and serve a reply to the Fourth Further Amended Defence by noon on...