Mendonca v Matthews Folbigg Pty Ltd & Anor [2022] NSWSC 764

Mendonca v Matthews Folbigg Pty Ltd & Anor [2022] NSWSC 764

Leave to file the further amended statement of claim was granted because there was no preclusive rule requiring dismissal of a second interlocutory amendment application, the proceedings remained on foot, the earlier judgment did not specifically determine that the failure to document claim was an abuse of process or subject to Anshun estoppel, and the plaintiff confined the claim to one proceeding on the facts found in the Tonna proceedings without challenging those findings. In those circumstances, the interests of justice under ss 56 to 58 of the Civil Procedure Act 2005 (NSW) favoured permitting the amendment.

Jurisdiction
Australia
Judgment Date
10 June 2022
Procedural Posture
Professional Negligence Proceedings; Civil Procedure Application to Amend Pleading / Interlocutory Notice of Motion by the Plaintiff for Leave to File a Further Amended Statement of Claim
Outcome
Plaintiff's motion granted; leave granted to file the further amended statement of claim.
Legal Topics
['leave to Amend Statement of Claim' 'second Interlocutory Application' 'abuse of Process' 'anshun Estoppel' 'overriding Purpose' 'costs in the Cause']
['civil Procedure' 'professional Negligence'] ['leave to Amend Statement of Claim' 'second Interlocutory Application' 'abuse of Process' 'anshun Estoppel' 'overriding Purpose' 'costs in the Cause']

Case Brief

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Procedural Posture

Professional Negligence Proceedings; Civil Procedure Application to Amend Pleading / Interlocutory Notice of Motion by the Plaintiff for Leave to File a Further Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave on a second application to file a further amended statement of claim.' 'Whether the second amendment application was precluded because an earlier application to amend had been refused and the amended statement of claim struck out.' 'Whether the proposed failure to document claim necessarily involved going behind or challenging findings in the Tonna proceedings.' 'Whether the interests of justice under the Civil Procedure Act 2005 (NSW) favoured granting leave to amend.']

Ratio Decidendi

Leave to file the further amended statement of claim was granted because there was no preclusive rule requiring dismissal of a second interlocutory amendment application, the proceedings remained on foot, the earlier judgment did not specifically determine that the failure to document claim was an abuse of process or subject to Anshun estoppel, and the plaintiff confined the claim to one proceeding on the facts found in the Tonna proceedings without challenging those findings. In those circumstances, the interests of justice under ss 56 to 58 of the Civil Procedure Act 2005 (NSW) favoured permitting the amendment.

Court Disposition

Plaintiff's motion granted; leave granted to file the further amended statement of claim.

Orders

  • ['Leave is granted to file the further amended statement of claim in the form annexed to the motion.' 'The defendants file defences within 28 days of service of the further amended statement of claim.' 'The costs of the motion are costs in the cause.' "Should any party seek a variation of that order, liberty to...