Riverina Wines Pty Limited v Tetra Pak Marketing Pty Limited & Ors [2007] NSWSC 1014

Riverina Wines Pty Limited v Tetra Pak Marketing Pty Limited & Ors [2007] NSWSC 1014

Leave was granted only for the amendments identified in the Schedule. The amendments adding or particularising matters that did not alter the basis of the claim, and the new contract, negligence and s 74 Trade Practices Act claims against the third defendant, were allowed because the latter arose from substantially the same factual terrain as the existing Trade Practices Act claim. Leave to add an alternate oxygen-based causation case was refused because the plaintiff had long had expert material addressing oxygen, gave no adequate explanation for the late amendment, and the defendants would suffer real prejudice because only eight packages remained and they were insufficient for rigorous...

Jurisdiction
Australia
Judgment Date
11 September 2007
Procedural Posture
Notice of Motion for Leave to Further Amend Statement of Claim / Application for Leave to Amend Pleadings
Outcome
Leave granted in part to further amend the statement of claim strictly in accordance with the Schedule; plaintiff ordered to pay the defendants' costs of the motion because of delay.
Legal Topics
['leave to Amend Statement of Claim' 'statute Barred Causes of Action' 'prejudice From Delay' 'misleading or Deceptive Conduct' 'negligence' 'contract' 'trade Practices Act Implied Warranties']
['civil Procedure' 'trade Practices' 'pleadings'] ['leave to Amend Statement of Claim' 'statute Barred Causes of Action' 'prejudice From Delay' 'misleading or Deceptive Conduct' 'negligence' 'contract' 'trade Practices Act Implied Warranties']

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Procedural Posture

Notice of Motion for Leave to Further Amend Statement of Claim / Application for Leave to Amend Pleadings

Legal Issues

  1. 1 ['Whether leave should be granted to permit the plaintiff to further amend its statement of claim under sections 64 and 65 of the Civil Procedure Act 2001.' 'Whether the plaintiff should be permitted to add an alternate causal element based on oxygen or dissolved oxygen entering or remaining in the packaging.' 'Whether the plaintiff should be permitted to add statute-barred causes of action in contract, negligence and under s 74 of the Trade Practices Act 1974 (Cth) against the third defendant.' 'Whether the proposed new causes of action against the third defendant arose from the same or substantially the same facts as the existing Trade Practices Act claim.']

Ratio Decidendi

Leave was granted only for the amendments identified in the Schedule. The amendments adding or particularising matters that did not alter the basis of the claim, and the new contract, negligence and s 74 Trade Practices Act claims against the third defendant, were allowed because the latter arose from substantially the same factual terrain as the existing Trade Practices Act claim. Leave to add an alternate oxygen-based causation case was refused because the plaintiff had long had expert material addressing oxygen, gave no adequate explanation for the late amendment, and the defendants would suffer real prejudice because only eight packages remained and they were insufficient for rigorous...

Court Disposition

Leave granted in part to further amend the statement of claim strictly in accordance with the Schedule; plaintiff ordered to pay the defendants' costs of the motion because of delay.

Orders

  • ['Leave is granted to permit the plaintiff to further amend the statement of claim strictly in accordance with the Schedule annexed to this judgment.' "By reason of the delay in seeking leave to amend the plaintiff is to pay the defendants' costs of the motion."]