Perpetual Trustee Company Ltd v Markos [2007] NSWSC 908

Perpetual Trustee Company Ltd v Markos [2007] NSWSC 908

Leave to amend the defence to include the defence of material alteration was granted as it constitutes a complete defence to the claim, and case management considerations should not override substantive justice between the parties. The surer procedural course is to allow a cross-claim against the principal, Five Dock Developments Pty Limited, rather than join it as a co-defendant, since the hearing would have to be vacated regardless.

Jurisdiction
Australia
Judgment Date
30 May 2007
Procedural Posture
Proceedings on Guarantees Under Contract for Sale / Leave to Amend Defence and File Second Cross Claim Granted
Outcome
Leave to amend defence and file second cross-claim granted; hearing vacated.
Legal Topics
['amendment of Pleadings' 'joinder of Parties' 'guarantees' 'relief Under Conveyancing Act S 55(2 A)']
['equity' 'procedure'] ['amendment of Pleadings' 'joinder of Parties' 'guarantees' 'relief Under Conveyancing Act S 55(2 A)']

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Procedural Posture

Proceedings on Guarantees Under Contract for Sale / Leave to Amend Defence and File Second Cross Claim Granted

Legal Issues

  1. 1 ['Whether leave should be granted to amend the defence' 'Whether leave should be granted to file a second cross-claim against Five Dock Developments Pty Limited' 'Whether principal may be joined as co-defendant']

Ratio Decidendi

Leave to amend the defence to include the defence of material alteration was granted as it constitutes a complete defence to the claim, and case management considerations should not override substantive justice between the parties. The surer procedural course is to allow a cross-claim against the principal, Five Dock Developments Pty Limited, rather than join it as a co-defendant, since the hearing would have to be vacated regardless.

Court Disposition

Leave to amend defence and file second cross-claim granted; hearing vacated.

Orders

  • ['Grant leave to the first defendant to amend defence by filing amended defence (with amendment as per annexure, subject to deletion of references to third defendant)' 'Grant leave to the first defendant to file a second cross-claim against Five Dock Developments Pty Limited' 'Order that the hearing appointed to...