Khoury v Sidhu (No. 2) [2010] FCA 1320

Khoury v Sidhu (No. 2) [2010] FCA 1320

Leave is granted to the respondents to amend their Defence (excluding paragraphs 73 to 81) so as to plead contribution and proportionate liability, as it is arguable that discretion under s 87 may be informed by factors that would reduce damages under s 82; leave is granted for affidavits and for further discovery; leave to issue subpoena is granted in amended form; leave is refused for amendments predicated on concurrent wrongdoing by a solicitor, as the pleading does not assert contravention of s 52 by that person.

Jurisdiction
Australia
Judgment Date
30 November 2010
Procedural Posture
Civil / Interlocutory Application for Leave to Amend Defence, File Affidavits, Discovery, and Issue Subpoena
Outcome
Interlocutory orders made; leave granted to amend defence (except paras 73-81), file affidavits, further discovery, and issue subpoena in amended form; costs reserved.
Legal Topics
['leave to Amend Pleadings' 'contribution and Proportionate Liability' 'compensation Under Trade Practices Act' 'discretion Under S 87' 'discovery' 'legal Professional Privilege' 'subpoena']
['practice and Procedure' 'consumer Law'] ['leave to Amend Pleadings' 'contribution and Proportionate Liability' 'compensation Under Trade Practices Act' 'discretion Under S 87' 'discovery' 'legal Professional Privilege' 'subpoena']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil / Interlocutory Application for Leave to Amend Defence, File Affidavits, Discovery, and Issue Subpoena

Legal Issues

  1. 1 ['Whether leave should be granted to amend the Defence to plead contributory negligence or proportionate liability where compensation is sought under s 87 of the Trade Practices Act and not s 82.' "Whether the exercise of discretion under s 87 permits consideration of claimants' contribution to loss and proportionate liability of respondents." 'Whether applicants have waived legal professional privilege over documents by relying on evidence of privileged communications.' 'Whether further discovery by applicants should be ordered.' 'Whether leave should be granted for various subpoenas and affidavits.']

Ratio Decidendi

Leave is granted to the respondents to amend their Defence (excluding paragraphs 73 to 81) so as to plead contribution and proportionate liability, as it is arguable that discretion under s 87 may be informed by factors that would reduce damages under s 82; leave is granted for affidavits and for further discovery; leave to issue subpoena is granted in amended form; leave is refused for amendments predicated on concurrent wrongdoing by a solicitor, as the pleading does not assert contravention of s 52 by that person.

Court Disposition

Interlocutory orders made; leave granted to amend defence (except paras 73-81), file affidavits, further discovery, and issue subpoena in amended form; costs reserved.

Orders

  • ['Respondents granted leave to amend Defence as proposed (except paragraphs 73-81).' 'Respondents granted leave to file affidavits of Denis Bryant Stephenson (28 May 2010) and Baldev Singh Sidhu (31 May 2010).' 'Respondents to file and serve Amended Defence by 6 December 2010.' 'Applicants granted leave to file and...