M J SHERRIN PTY LIMITED v CUNNEED & CO PTY LIMITED [1993] NSWCA 166

M J SHERRIN PTY LIMITED v CUNNEED & CO PTY LIMITED [1993] NSWCA 166

The Judge did not misconceive his function nor overlook the limitation defence, which could still be pleaded after the amendment; no injustice justified a further appeal; leave to appeal is refused.

Parties
Claimant: M J SHERRIN PTY LIMITED; Opponent/respondent: CUNNEED & CO PTY LIMITED
Jurisdiction
Australia
Judgment Date
13 December 1993
Procedural Posture
Application for Leave to Appeal / Court of Appeal Decision
Outcome
summons for leave to appeal dismissed
Legal Topics
Leave to Appeal, Pleadings, Application for Amendment of Statement of Claim, Appellate Function, Limitation Defence
Practice and Procedure Leave to Appeal Pleadings Application for Amendment of Statement of Claim Appellate Function Limitation Defence

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Parties

M J SHERRIN PTY LIMITED

Claimant

CUNNEED & CO PTY LIMITED

Opponent/respondent

Procedural Posture

Application for Leave to Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether leave to appeal should be granted against a Judge's decision permitting amendment of a Statement of Claim
  2. 2 Whether the Judge misapplied the appellate function
  3. 3 Whether the Judge failed to consider a limitation defence

Ratio Decidendi

The Judge did not misconceive his function nor overlook the limitation defence, which could still be pleaded after the amendment; no injustice justified a further appeal; leave to appeal is refused.

Court Disposition

summons for leave to appeal dismissed

Orders

  • Summons dismissed with costs.