Randwick CC v Burnett & Burnett [2004] NSWSC 715

Randwick CC v Burnett & Burnett [2004] NSWSC 715

Leave to amend was granted because the proposed reliance on the Impounding Act 1993 (NSW) was not shown to be hopeless, futile or not reasonably arguable, and any prejudice caused by the late amendment could be met by the adjournment, possible recall of witnesses for further cross-examination and an appropriate costs order.

Jurisdiction
Australia
Judgment Date
12 October 2004
Procedural Posture
Interlocutory Application to Amend Pleadings / During Adjourned Trial, on Plaintiff's Application for Leave to Amend Its Defence to the Defendants' Cross Claim
Outcome
Plaintiff granted leave to amend its defence to the cross claim.
Legal Topics
['amendment of Pleadings' 'impounding of Articles' 'conversion' 'procedural Fairness' 'costs']
['civil Procedure' 'local Government' 'property Law'] ['amendment of Pleadings' 'impounding of Articles' 'conversion' 'procedural Fairness' 'costs']

Case Brief

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Procedural Posture

Interlocutory Application to Amend Pleadings / During Adjourned Trial, on Plaintiff's Application for Leave to Amend Its Defence to the Defendants' Cross Claim

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to amend its defence to the cross claim to rely on the Impounding Act 1993 (NSW).' 'Whether the proposed amended defence was obviously futile or not reasonably arguable.' 'Whether any prejudice to the defendants from the late amendment could be addressed by the adjournment, recall of witnesses and costs orders.']

Ratio Decidendi

Leave to amend was granted because the proposed reliance on the Impounding Act 1993 (NSW) was not shown to be hopeless, futile or not reasonably arguable, and any prejudice caused by the late amendment could be met by the adjournment, possible recall of witnesses for further cross-examination and an appropriate costs order.

Court Disposition

Plaintiff granted leave to amend its defence to the cross claim.

Orders

  • ['Leave to amend be granted as sought by the plaintiff and the defence to the cross claim be amended accordingly.' 'Subject to any other or further arguments, the costs of this application for amendment, both in respect of the written and oral submissions, should be the costs of the defendants in the proceedings.'...