Marshall v Prescott (No 4) [2013] NSWSC 455

Marshall v Prescott (No 4) [2013] NSWSC 455

Leave to file the amended defence should be granted because adequate notice was given, sufficient time remains for the plaintiffs to respond with evidence, and the amendment was necessitated by a change in legal advice and representation. The circumstances do not justify vacating the trial date or refusing leave, as no significant prejudice is demonstrated.

Parties
First Plaintiff: Margaret Lesley Marshall; Second Plaintiff: Kim Neil Marshall; Defendant: Michael Prescott
Jurisdiction
Australia
Judgment Date
01 May 2013
Procedural Posture
Civil / Interlocutory Order Regarding Amendment of Defence and Evidence Timetable
Outcome
Leave granted to amend defence; timetable set for further evidence; costs to be paid by Mr Prescott.
Legal Topics
Leave to Amend Defence, Estoppel, Notice of Motion, Costs, Trial Timetable
Civil Procedure Leave to Amend Defence Estoppel Notice of Motion Costs Trial Timetable

Case Brief

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Parties

Margaret Lesley Marshall

First Plaintiff

Kim Neil Marshall

Second Plaintiff

Michael Prescott

Defendant

Procedural Posture

Civil / Interlocutory Order Regarding Amendment of Defence and Evidence Timetable

Legal Issues

  1. 1 Whether leave should be granted to Mr Prescott to file the amended defence raising estoppel defences
  2. 2 Whether the plaintiffs should be permitted to serve further evidence to answer estoppel defences
  3. 3 Whether the trial date should be vacated

Ratio Decidendi

Leave to file the amended defence should be granted because adequate notice was given, sufficient time remains for the plaintiffs to respond with evidence, and the amendment was necessitated by a change in legal advice and representation. The circumstances do not justify vacating the trial date or refusing leave, as no significant prejudice is demonstrated.

Court Disposition

Leave granted to amend defence; timetable set for further evidence; costs to be paid by Mr Prescott.

Orders

  • Mr Prescott be granted leave to file the amended defence.
  • The plaintiffs serve any further evidence on which they wish to rely in relation to the estoppel defences within 6 weeks of today's date.