Wendt v Northwood [2003] NSWSC 546

Wendt v Northwood [2003] NSWSC 546

The proposed amended claim was belated but fairly arguable, no limitation difficulty was raised, and although the first defendant suffered some forensic prejudice because cross-examination had already occurred on different pleadings, that prejudice was minor and outweighed by the plaintiff's right to propound the case as advised. Because fresh proceedings could apparently be commenced without a limitation bar, amendment was the more cost-effective and convenient course in the interests of justice, with costs thrown away to be the first defendant's costs in the cause.

Jurisdiction
Australia
Judgment Date
24 June 2003
Procedural Posture
Civil Proceedings Involving an Application to Amend Pleadings / Application Made Three Days Into Trial After Entry of Judgment for the Second Defendant
Outcome
Judgment for the second defendant confirmed; plaintiff granted leave to rely on an amended statement of claim; proceedings referred for a new hearing date; first defendant awarded costs thrown away by the amendment as costs in the cause.
Legal Topics
['amendment of Pleadings During Trial' 'prejudice to Opposing Party' 'breach of Fiduciary Duty by Solicitor' 'misleading and Deceptive Conduct' 'costs Thrown Away by Amendment']
['civil Procedure' 'equity' 'professional Negligence' 'fair Trading'] ['amendment of Pleadings During Trial' 'prejudice to Opposing Party' 'breach of Fiduciary Duty by Solicitor' 'misleading and Deceptive Conduct' 'costs Thrown Away by Amendment']

Case Brief

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Procedural Posture

Civil Proceedings Involving an Application to Amend Pleadings / Application Made Three Days Into Trial After Entry of Judgment for the Second Defendant

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to rely on an amended statement of claim three days into the trial.' 'Whether the proposed new claims were fairly arguable or hopeless.' 'Whether any prejudice to the first defendant from the amendment was incurable or could be addressed by adjournment and costs.' 'What costs order should be made for proceedings thrown away by the amendment.']

Ratio Decidendi

The proposed amended claim was belated but fairly arguable, no limitation difficulty was raised, and although the first defendant suffered some forensic prejudice because cross-examination had already occurred on different pleadings, that prejudice was minor and outweighed by the plaintiff's right to propound the case as advised. Because fresh proceedings could apparently be commenced without a limitation bar, amendment was the more cost-effective and convenient course in the interests of justice, with costs thrown away to be the first defendant's costs in the cause.

Court Disposition

Judgment for the second defendant confirmed; plaintiff granted leave to rely on an amended statement of claim; proceedings referred for a new hearing date; first defendant awarded costs thrown away by the amendment as costs in the cause.

Orders

  • ['Confirm entry of judgment for second defendant.' 'Confirm plaintiff is to pay the costs of the second defendant.' 'Plaintiff granted leave to file and serve and rely upon the amended statement of claim.' 'The proceedings are to be referred to the list judge to set a new hearing date.' "Costs of these proceedings...