Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371

Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371

The primary judge erred in refusing leave to amend and summarily dismissing the claim on the basis that the causes of action had unarguably accrued by 30 November 2008. The proposed amended statement of claim alleged a number of representations, not all tied to repayment by 30 November 2008, and it was not beyond doubt that all claims turned on an obligation to repay funds on that date. Having regard to the caution required when deciding limitation issues at an interlocutory stage, it could not be said that the statutory limitation period had unarguably expired or that the proposed re-pleaded claim was hopeless.

Jurisdiction
Australia
Judgment Date
01 December 2015
Procedural Posture
Application for Leave to Appeal and Appeal From Interlocutory Orders Refusing Leave to Amend, Striking Out the Statement of Claim and Summarily Dismissing the Claim Against the Respondent / Court of Appeal of the Supreme Court of New South Wales
Outcome
Leave to appeal granted and appeal allowed.
Legal Topics
['leave to Appeal' 'interlocutory Decision' 'leave to Amend Statement of Claim' 'summary Dismissal' 'misleading or Deceptive Conduct' 'economic Loss' 'accrual of Cause of Action']
['civil Procedure' 'limitation of Actions' 'consumer Protection' 'negligence'] ['leave to Appeal' 'interlocutory Decision' 'leave to Amend Statement of Claim' 'summary Dismissal' 'misleading or Deceptive Conduct' 'economic Loss' 'accrual of Cause of Action']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal From Interlocutory Orders Refusing Leave to Amend, Striking Out the Statement of Claim and Summarily Dismissing the Claim Against the Respondent / Court of Appeal of the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from interlocutory orders refusing leave to amend and summarily dismissing the proceedings against Coffey.' 'Whether the primary judge erred in concluding that it was unarguable that the causes of action accrued no later than 30 November 2008 and were statute-barred.' 'Whether the proposed amended pleading was hopeless because the statutory limitation period had unarguably expired.' "Whether Coffey's notice of contention should be upheld on the basis that the applicant suffered immediate loss on transfer of the funds because the transaction was valueless at the outset."]

Ratio Decidendi

The primary judge erred in refusing leave to amend and summarily dismissing the claim on the basis that the causes of action had unarguably accrued by 30 November 2008. The proposed amended statement of claim alleged a number of representations, not all tied to repayment by 30 November 2008, and it was not beyond doubt that all claims turned on an obligation to repay funds on that date. Having regard to the caution required when deciding limitation issues at an interlocutory stage, it could not be said that the statutory limitation period had unarguably expired or that the proposed re-pleaded claim was hopeless.

Court Disposition

Leave to appeal granted and appeal allowed.

Orders

  • ['Leave to appeal be granted and the appeal allowed.' 'The orders made by the Court below on 12 June 2015 be set aside.' "The first defendant's amended notice of motion dated 28 April 2015 be dismissed." "The first defendant pay the plaintiff's costs of and incidental to the hearing of the amended notice of motion."...