New Cap Reinsurance v Reaseguros Alianza SA [2004] NSWSC 787

New Cap Reinsurance v Reaseguros Alianza SA [2004] NSWSC 787

Leave to amend was granted because the original application under s 588FF(3)(b) for extension of time was validly made, was not abandoned by omission from the statement of claim, and because the absence of identified prejudice to the defendant outweighed the delay and justified an extension of time and amendment under the Supreme Court Rules.

Parties
Plaintiff: New Cap Reinsurance Corporation Limited (In Liq) & Gibbons; Defendant: Reaseguros Alianza SA
Jurisdiction
Australia
Judgment Date
31 August 2004
Procedural Posture
Corporations Interlocutory Application / Application for Leave to Amend Statement of Claim
Outcome
Leave to amend statement of claim granted
Legal Topics
S 588 FF Corporations Act, Extension of Time, Amendment of Pleadings, Voidable Transactions, Unfair Preference, Limitations, Discretionary Relief
Corporations Law Civil Procedure S 588 FF Corporations Act Extension of Time Amendment of Pleadings Voidable Transactions Unfair Preference Limitations +1 more

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Parties

New Cap Reinsurance Corporation Limited (In Liq) & Gibbons

Plaintiff

Reaseguros Alianza SA

Defendant

Procedural Posture

Corporations Interlocutory Application / Application for Leave to Amend Statement of Claim

Legal Issues

  1. 1 Whether the claim for extension of time under s 588FF(3)(b) was validly made
  2. 2 Whether claim was abandoned by not being pleaded in statement of claim
  3. 3 Whether s 588FF(3)(b) precludes amendment

Ratio Decidendi

Leave to amend was granted because the original application under s 588FF(3)(b) for extension of time was validly made, was not abandoned by omission from the statement of claim, and because the absence of identified prejudice to the defendant outweighed the delay and justified an extension of time and amendment under the Supreme Court Rules.

Court Disposition

Leave to amend statement of claim granted

Orders

  • Grant leave to the plaintiffs to file an Amended Statement of Claim in the form of the draft Amended Statement of Claim which is exhibit KAM 17 to the affidavit of Katherine Alison Merrick affirmed 25 February 2004 subject to corrections.
  • Direct that the plaintiffs file an amended Originating Process incorporating the additional claims for relief referred to in the Amended Statement of Claim within seven days.