Samir and Susan Gindy v Holden Street Pty Ltd [2012] NSWSC 1269

Samir and Susan Gindy v Holden Street Pty Ltd [2012] NSWSC 1269

Leave to amend was granted because, although the explanation for delay was minimal and there was general prejudice from the passage of time, the proposed cross-claim was strong and viable, its substance had not changed since 2009, the third defendant had served a detailed quantum report, no hearing date had been fixed, court time had not been wasted by an abandoned hearing, and the plaintiffs could be protected by costs orders.

Jurisdiction
Australia
Judgment Date
24 October 2012
Procedural Posture
Interlocutory Application / Notice of Motion by the Third Defendant Filed 27 June 2012 Seeking Leave to File and Serve a Second Further Amended Cross Claim
Outcome
Leave granted to file amended pleading subject to costs orders.
Legal Topics
['leave to Amend Cross Claim' 'delay in Proceedings' 'discretion to Allow Amendments' 'prejudice to Parties' 'costs Thrown Away' 'misleading and Deceptive Conduct']
['civil Procedure' 'consumer Law'] ['leave to Amend Cross Claim' 'delay in Proceedings' 'discretion to Allow Amendments' 'prejudice to Parties' 'costs Thrown Away' 'misleading and Deceptive Conduct']

Case Brief

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Procedural Posture

Interlocutory Application / Notice of Motion by the Third Defendant Filed 27 June 2012 Seeking Leave to File and Serve a Second Further Amended Cross Claim

Legal Issues

  1. 1 ['Whether the third defendant should be granted leave to file and serve a second further amended cross-claim despite substantial delays in the proceedings.' 'Whether the delay and any prejudice to the plaintiffs should outweigh the grant of leave to amend.' 'What costs protection should be ordered if leave to amend is granted.']

Ratio Decidendi

Leave to amend was granted because, although the explanation for delay was minimal and there was general prejudice from the passage of time, the proposed cross-claim was strong and viable, its substance had not changed since 2009, the third defendant had served a detailed quantum report, no hearing date had been fixed, court time had not been wasted by an abandoned hearing, and the plaintiffs could be protected by costs orders.

Court Disposition

Leave granted to file amended pleading subject to costs orders.

Orders

  • ['The cross-claimant pay the costs thrown away as a result of the amendment.' 'The cross-claimant pay the costs of the plaintiffs in respect of all directions hearings in this court from 31 May 2011 to the present incurred by the plaintiffs except to the extent that orders have already been made to date in respect...