Stuart v Manning Retail Pty Ltd [2024] NSWSC 1158

Stuart v Manning Retail Pty Ltd [2024] NSWSC 1158

Leave to amend and to rely on the late-served affidavits was granted because Allianz had always disclaimed liability under the policy, the basis of the non-disclosure defence needed to be particularised, the evidence was relevant to issues raised by the plaintiff, and any prejudice to the plaintiff could be addressed by permitting a Reply, document requests and liberty to relist if further orders or vacation became necessary.

Jurisdiction
Australia
Judgment Date
23 August 2024
Procedural Posture
Civil Personal Injury Negligence Proceedings With Insurer Joined Under S 5 of the Civil Liability (third Party Claims Against Insurers) Act 2017 (nsw) / Interlocutory Motion for Leave to Amend Defence and Rely on Late Served Affidavit Evidence Before Trial
Outcome
The third defendant was granted leave to amend its defence and rely on the specified affidavits; the hearing date was confirmed; directions were made for a Reply and for document requests; costs were stood over to the trial judge.
Legal Topics
['amendment of Pleadings' 'late Service of Evidence' 'disclaimer of Liability' 'non Disclosure' 'waiver and Election' 'case Management']
['civil Procedure' 'insurance' 'negligence'] ['amendment of Pleadings' 'late Service of Evidence' 'disclaimer of Liability' 'non Disclosure' 'waiver and Election' 'case Management']

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Procedural Posture

Civil Personal Injury Negligence Proceedings With Insurer Joined Under S 5 of the Civil Liability (third Party Claims Against Insurers) Act 2017 (nsw) / Interlocutory Motion for Leave to Amend Defence and Rely on Late Served Affidavit Evidence Before Trial

Legal Issues

  1. 1 ['Whether the third defendant insurer should be granted leave to amend its defence to particularise its disclaimer of liability on the basis of non-disclosure.' 'Whether the third defendant insurer should be granted leave to rely on affidavits served late.' 'Whether any prejudice to the plaintiff from the late amendment and late service could be managed without vacating the hearing date.' "Whether the plaintiff should plead any case based on waiver, estoppel or election in response to the insurer's disclaimer of liability."]

Ratio Decidendi

Leave to amend and to rely on the late-served affidavits was granted because Allianz had always disclaimed liability under the policy, the basis of the non-disclosure defence needed to be particularised, the evidence was relevant to issues raised by the plaintiff, and any prejudice to the plaintiff could be addressed by permitting a Reply, document requests and liberty to relist if further orders or vacation became necessary.

Court Disposition

The third defendant was granted leave to amend its defence and rely on the specified affidavits; the hearing date was confirmed; directions were made for a Reply and for document requests; costs were stood over to the trial judge.

Orders

  • ['The hearing date for seven days commencing 16 September 2024 was confirmed.' 'Leave was granted to the third defendant to amend its defence in accordance with the proposed amended defence annexed to the notice of motion, with that document taken as filed on 23 August 2024.' 'The plaintiff was ordered to file any...