Rosemary Corbett v Anita Hyde [2022] NSWLEC 13

Rosemary Corbett v Anita Hyde [2022] NSWLEC 13

Leave to amend was granted because, despite deficient drafting, the respondents knew which window cavities were the subject of the proceedings, or at least had ample basis to clarify the issue earlier. Corbett provided an acceptable explanation for not amending sooner, based on the respondents' prior correspondence consenting to the relevant declaration and not raising ambiguity. The amendment did not introduce a new substantial claim but regularised the pleadings to identify windows B, C and D. Any prejudice to the respondents was not unfair or was cured by the adjournment and the opportunity to file further evidence. Application of ss 56 to 60 and s 64 of the Civil Procedure Act 2005...

Jurisdiction
Australia
Judgment Date
21 February 2022
Procedural Posture
Class 4 Civil Enforcement Proceedings / Application for Leave to Amend the Summons and Points of Claim
Outcome
Leave granted to the applicant to amend the summons and points of claim. Costs reserved.
Legal Topics
['amendment of Summons and Pleadings' 'late Amendment' 'prejudice' 'case Management' 'development Consent' 'alleged Unlawful Removal of Glass Bricks' 'declaratory and Mandatory Injunctive Relief']
['civil Procedure' 'planning and Environment' 'civil Enforcement'] ['amendment of Summons and Pleadings' 'late Amendment' 'prejudice' 'case Management' 'development Consent' 'alleged Unlawful Removal of Glass Bricks' 'declaratory and Mandatory Injunctive Relief']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Application for Leave to Amend the Summons and Points of Claim

Legal Issues

  1. 1 ['The correct test for permitting a late amendment of pleadings.' 'Whether the respondents in fact knew which window cavities were in dispute.' 'Whether the respondents ought to have clarified which window cavities were in dispute.' 'Whether the respondents would be prejudiced if the amendment was allowed.' 'If prejudice existed, whether it could be cured.']

Ratio Decidendi

Leave to amend was granted because, despite deficient drafting, the respondents knew which window cavities were the subject of the proceedings, or at least had ample basis to clarify the issue earlier. Corbett provided an acceptable explanation for not amending sooner, based on the respondents' prior correspondence consenting to the relevant declaration and not raising ambiguity. The amendment did not introduce a new substantial claim but regularised the pleadings to identify windows B, C and D. Any prejudice to the respondents was not unfair or was cured by the adjournment and the opportunity to file further evidence. Application of ss 56 to 60 and s 64 of the Civil Procedure Act 2005...

Court Disposition

Leave granted to the applicant to amend the summons and points of claim. Costs reserved.

Orders

  • ['Leave is granted to Corbett to amend her summons and points of claim.' 'The costs of the application are reserved.' 'The parties are to file consent or competing short minutes of order for the further conduct of the part-heard proceedings.']