Cappello v Lyons [2022] NSWDC 258

Cappello v Lyons [2022] NSWDC 258

The dictates of justice favoured permitting the plaintiffs to amend because the proposed cl 16 negligence case was tolerably clear and reasonably arguable, the respondent's pleading objection failed, and the respondent's asserted prejudice and risk to the hearing date were not substantiated by evidence and appeared more theoretical than real. Any prejudice could be managed by conditions limiting the plaintiffs' further evidence, allowing a defence and responsive evidence, and making a costs order. The supplementary affidavit was also allowed subject to exclusion of an inadmissible legal conclusion and directions as to documents, because most of it concerned quantum and any additional...

Jurisdiction
Australia
Judgment Date
12 July 2022
Procedural Posture
Civil Professional Negligence Suit Against Solicitor / Interlocutory Motion by Plaintiffs for Leave to Amend Statement of Claim and Rely on Supplementary Affidavit Evidence
Outcome
Plaintiffs' motion granted substantially, subject to conditions; plaintiffs ordered to pay the defendant's costs of and occasioned by the motion.
Legal Topics
['amendment of Pleadings' 'supplementary Affidavit Evidence' 'solicitor Negligence' 'prejudice and Case Management' 'home Building Dispute']
['practice and Procedure' 'professional Negligence' 'civil Procedure' 'building and Construction'] ['amendment of Pleadings' 'supplementary Affidavit Evidence' 'solicitor Negligence' 'prejudice and Case Management' 'home Building Dispute']

Case Brief

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Procedural Posture

Civil Professional Negligence Suit Against Solicitor / Interlocutory Motion by Plaintiffs for Leave to Amend Statement of Claim and Rely on Supplementary Affidavit Evidence

Legal Issues

  1. 1 ['Whether the plaintiffs should be granted leave to amend their statement of claim to add allegations based on cl 16 of the construction contract and to particularise damages.' 'Whether the proposed cl 16 amendments failed to plead necessary material facts.' 'Whether allowing the amendments would cause prejudice to the defendant or imperil the listed hearing date.' 'Whether the plaintiffs should be granted leave to rely on a supplementary affidavit from Rosario Cappello, and on what conditions.' "What costs order should follow from the plaintiffs' motion."]

Ratio Decidendi

The dictates of justice favoured permitting the plaintiffs to amend because the proposed cl 16 negligence case was tolerably clear and reasonably arguable, the respondent's pleading objection failed, and the respondent's asserted prejudice and risk to the hearing date were not substantiated by evidence and appeared more theoretical than real. Any prejudice could be managed by conditions limiting the plaintiffs' further evidence, allowing a defence and responsive evidence, and making a costs order. The supplementary affidavit was also allowed subject to exclusion of an inadmissible legal conclusion and directions as to documents, because most of it concerned quantum and any additional...

Court Disposition

Plaintiffs' motion granted substantially, subject to conditions; plaintiffs ordered to pay the defendant's costs of and occasioned by the motion.

Orders

  • ['Leave is granted to the plaintiffs to file and serve an Amended Statement of Claim by close of business on 14 July 2022, in accordance with the draft proposed Amended Statement of Claim handed up to the Court at the hearing on 11 July 2022, on terms that, except for the affidavit from Rosario Cappello affected by...