McLeod v McKendry [2012] NSWSC 1646

McLeod v McKendry [2012] NSWSC 1646

The defendant was not permitted to withdraw the admissions and allegations treating the partnership business and the Transip/MAC Unit Trust structure as combined because those admissions were clear and deliberate, the matter and valuation work had proceeded on that basis, the underlying state of affairs had long...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
19 December 2012
Procedural Posture
Application for Leave to Further Amend List Response and to Rely on Affidavits Served Out of Time / Interlocutory Application in Equity Division Commercial List
Outcome
Leave granted in part to amend and to rely on affidavits served out of time; leave refused for specified amendments and specified parts of the affidavits.
Legal Topics
['leave to Amend Pleadings' 'withdrawal of Admissions' 'late Evidence' 'partnership Valuation' 'goodwill' 'fiduciary Duty']
['civil Procedure' 'equity' 'partnership'] ['leave to Amend Pleadings' 'withdrawal of Admissions' 'late Evidence' 'partnership Valuation' 'goodwill' 'fiduciary Duty']

Source-derived case record

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Procedural Posture

Application for Leave to Further Amend List Response and to Rely on Affidavits Served Out of Time / Interlocutory Application in Equity Division Commercial List

Legal Issues

  1. 1 ['Whether the defendant should be granted leave to withdraw admissions and amend the List Response to separate the partnership from Transip Pty Ltd as trustee of the MAC Unit Trust.' 'Whether the defendant should be granted leave to rely on two further affidavits served out of time.' 'Whether parts of the proposed further evidence concerning the unit trust issue and dead stock should be excluded.' 'Whether the hearing date should be vacated and the dispute referred to mediation.']

Ratio Decidendi

The defendant was not permitted to withdraw the admissions and allegations treating the partnership business and the Transip/MAC Unit Trust structure as combined because those admissions were clear and deliberate, the matter and valuation work had proceeded on that basis, the underlying state of affairs had long been visible, and withdrawal would cause significant injustice to the plaintiff. Other amendments were allowed where no real detriment was shown. Late affidavits were allowed only in part because they responded to detailed valuation material and would not imperil the hearing date, but parts concerning the refused unit trust issue and the unpleaded dead stock issue were excluded.

Court Disposition

Leave granted in part to amend and to rely on affidavits served out of time; leave refused for specified amendments and specified parts of the affidavits.

Orders

  • ['Leave to amend granted except for the amendments to para 6.1A, paras 27.1AB and 27.1AC, and para 27.2A(a), which was not pressed and would not have been allowed.' "Leave granted to rely on Mr Thompson's two further affidavits except to the extent that they concern the Transip or unit trust issue and the dead stock...