H.S.D. Co Pty Ltd v Masu Financial Management Pty Ltd [2008] NSWSC 1279

H.S.D. Co Pty Ltd v Masu Financial Management Pty Ltd [2008] NSWSC 1279

Leave to plead proposed paragraphs 18-22 was refused because the pleading merely asserted duties and breaches by alleged concurrent wrongdoers without adequately identifying the legal basis of each duty, the relationship giving rise to it, the conduct or omissions constituting breach, and the causal connection and damage. Those omissions went to the heart of the proportionate liability defence and did not give the plaintiff sufficient information to decide whether to join the alleged concurrent wrongdoers or otherwise meet the defence. However, because proportionate liability is an available defence if properly pleaded, the defendants were granted leave to re-plead if they could overcome...

Jurisdiction
Australia
Judgment Date
03 December 2008
Procedural Posture
Interlocutory Notice of Motion for Leave to Amend Defence in Professional Negligence Proceedings / Application by Defendants for Leave to File a Second Amended Defence
Outcome
Leave to amend was granted in part; leave to include proposed paragraphs 18-22 was refused, with leave to file a further amended defence pleading proportionate liability if the deficiencies can be overcome. The defendants were ordered to pay the plaintiff's costs of the motion and costs thrown away by the amendments.
Legal Topics
['amended Defence' 'proportionate Liability' 'concurrent Wrongdoers' 'pleading Requirements' 'costs']
['practice and Procedure' 'professional Negligence' 'civil Liability' 'proportionate Liability'] ['amended Defence' 'proportionate Liability' 'concurrent Wrongdoers' 'pleading Requirements' 'costs']

Case Brief

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Procedural Posture

Interlocutory Notice of Motion for Leave to Amend Defence in Professional Negligence Proceedings / Application by Defendants for Leave to File a Second Amended Defence

Legal Issues

  1. 1 ['Whether the first and second defendants should be granted leave to amend their amended defence to plead contributory negligence and proportionate liability.' 'Whether proposed paragraphs 18-22 adequately pleaded a proportionate liability defence by identifying concurrent wrongdoers, the basis of liability, breach, causation and damage.' 'Whether the defendants should have further leave to re-plead proportionate liability if the deficiencies in the proposed pleading can be overcome.']

Ratio Decidendi

Leave to plead proposed paragraphs 18-22 was refused because the pleading merely asserted duties and breaches by alleged concurrent wrongdoers without adequately identifying the legal basis of each duty, the relationship giving rise to it, the conduct or omissions constituting breach, and the causal connection and damage. Those omissions went to the heart of the proportionate liability defence and did not give the plaintiff sufficient information to decide whether to join the alleged concurrent wrongdoers or otherwise meet the defence. However, because proportionate liability is an available defence if properly pleaded, the defendants were granted leave to re-plead if they could overcome...

Court Disposition

Leave to amend was granted in part; leave to include proposed paragraphs 18-22 was refused, with leave to file a further amended defence pleading proportionate liability if the deficiencies can be overcome. The defendants were ordered to pay the plaintiff's costs of the motion and costs thrown away by the amendments.

Orders

  • ['Leave be granted to the first and second defendants to amend their amended defence in accordance with the proposed second amended defence annexed the affidavit of Steve Vrtkovski, sworn 15 August 2008, except that such proposed second amended defence may not include paragraphs 18-22 thereof.' 'Leave be granted to...