O’Donnell v Goway Travel Pty Ltd [2020] NSWSC 682

O’Donnell v Goway Travel Pty Ltd [2020] NSWSC 682

The Court granted only limited leave to amend because the proposed good faith amendment and other unopposed amendments raised legal questions arising from matters already agitated, but the proposed back-to-back pricing, frustration, unconscientious advantage and unjust enrichment amendments could require further factual inquiry, discovery or interrogatories and might jeopardise the imminent hearing date. Leave to administer interrogatories was refused because the Court was not satisfied they were necessary under Uniform Civil Procedure Rules 2005 (NSW) r 22.1(4), the questions could be asked in cross-examination, and it would be unfair to divert the plaintiff from trial preparation at...

Jurisdiction
Australia
Judgment Date
02 June 2020
Procedural Posture
Equity Commercial List; Procedural and Other Ruling / On the Papers; Defendant's Late Application to Amend Its Commercial List Response and for Leave to Administer Interrogatories Before a Hearing Listed to Commence on 15 June 2020
Outcome
Defendant granted limited leave to amend its response; leave to administer interrogatories refused.
Legal Topics
['late Amendment of Commercial List Response' 'leave to Administer Interrogatories' 'contractual Defences' 'implied Term of Good Faith' 'frustration' 'unconscientious Advantage' 'unjust Enrichment' 'costs Thrown Away']
['practice and Procedure' 'commercial Law'] ['late Amendment of Commercial List Response' 'leave to Administer Interrogatories' 'contractual Defences' 'implied Term of Good Faith' 'frustration' 'unconscientious Advantage' 'unjust Enrichment' 'costs Thrown Away']

Case Brief

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Procedural Posture

Equity Commercial List; Procedural and Other Ruling / On the Papers; Defendant's Late Application to Amend Its Commercial List Response and for Leave to Administer Interrogatories Before a Hearing Listed to Commence on 15 June 2020

Legal Issues

  1. 1 ['Whether the defendant should be granted leave at a late stage to amend its Commercial List Response to plead new contractual defences concerning implied back-to-back pricing terms, frustration, good faith, unconscientious advantage and unjust enrichment.' 'Whether allowing proposed amendments would require discovery or interrogatories and risk vacating the imminent hearing date.' 'Whether leave to administer interrogatories was necessary under Uniform Civil Procedure Rules 2005 (NSW) r 22.1(4) at the late stage of the proceedings.' 'What costs order should follow from the amendment and interrogatories application.']

Ratio Decidendi

The Court granted only limited leave to amend because the proposed good faith amendment and other unopposed amendments raised legal questions arising from matters already agitated, but the proposed back-to-back pricing, frustration, unconscientious advantage and unjust enrichment amendments could require further factual inquiry, discovery or interrogatories and might jeopardise the imminent hearing date. Leave to administer interrogatories was refused because the Court was not satisfied they were necessary under Uniform Civil Procedure Rules 2005 (NSW) r 22.1(4), the questions could be asked in cross-examination, and it would be unfair to divert the plaintiff from trial preparation at...

Court Disposition

Defendant granted limited leave to amend its response; leave to administer interrogatories refused.

Orders

  • ['Leave granted to the defendant to amend its Commercial List Response in the form attached to the reasons and marked "A" save for paragraphs C(3)(e) and (3)(g), and C(15), and any corresponding provisions under the heading "Issues Likely to Arise".' 'Leave refused to the defendant to administer interrogatories to...