Malouf v MBF Australia Ltd [2006] NSWSC 1320

Malouf v MBF Australia Ltd [2006] NSWSC 1320

Although the amendments were sought late and would cause an adjournment application, they would allow the real issues between the parties to be ventilated. Giving considerable weight to doing justice between the parties, leave to amend should be granted. Because the adjournment was directly attributable to the late application to amend, the plaintiff should pay the defendant's costs thrown away rather than have costs reserved.

Jurisdiction
Australia
Judgment Date
28 November 2006
Procedural Posture
Application to Further Amend Statement of Claim / Commencement of Trial; Ex Tempore Judgment
Outcome
Amendments allowed. Plaintiff ordered to pay defendant's costs thrown away.
Legal Topics
['amendment of Pleadings' 'adjournment' 'costs Thrown Away' 'unjust Enrichment' 'resulting Trust' 'quistclose Principles']
['civil Procedure' 'equity'] ['amendment of Pleadings' 'adjournment' 'costs Thrown Away' 'unjust Enrichment' 'resulting Trust' 'quistclose Principles']

Case Brief

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Procedural Posture

Application to Further Amend Statement of Claim / Commencement of Trial; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave at the commencement of trial to further amend the amended statement of claim to plead unjust enrichment.' 'Whether the plaintiff should be granted leave to amend the pleaded purpose for payment of moneys in a way said to invoke Quistclose principles.' 'Whether the likely need for an adjournment and possible prejudice to the defendant should prevent the amendments.' "Whether costs should be reserved or the plaintiff should pay the defendant's costs thrown away by the adjournment, and whether those costs should be payable forthwith."]

Ratio Decidendi

Although the amendments were sought late and would cause an adjournment application, they would allow the real issues between the parties to be ventilated. Giving considerable weight to doing justice between the parties, leave to amend should be granted. Because the adjournment was directly attributable to the late application to amend, the plaintiff should pay the defendant's costs thrown away rather than have costs reserved.

Court Disposition

Amendments allowed. Plaintiff ordered to pay defendant's costs thrown away.

Orders

  • ['Leave given to file in Court a further amended statement of claim initialled and dated by the judge and placed with the papers.' 'The hearing was vacated.' 'The matter was stood over before the Registrar at 9.30 am on Friday 8 December 2006.' "The plaintiff was ordered to pay the defendant's costs thrown away by...