Stojanovski v Stojanovski (No 2) [2012] NSWSC 1547

The application to amend is allowed because the withdrawal of the claim was made as a result of a mistake, it does not constitute a res judicata or a final disposition of the issue, and there is no substantial prejudice to the defendant. The interests of justice require that the real issues be determined on their merits rather than punishing non-fraudulent mistakes in pleading.

Parties: Plaintiff: Steven Stojanovski; First Defendant: Robert Stojanovski; Second Defendant: Jovanka Stojanovski
Jurisdiction: Australia
Judgment Date: 14 December 2012
Procedural Posture: Application to Amend Pleadings / Interlocutory
Outcome: Application to further amend statement of claim allowed.
Legal Topics: Amendment of Pleadings, Res Judicata, Family Provision Claims, Abuse of Process

Practice and Procedure Equity Amendment of Pleadings Res Judicata Family Provision Claims Abuse of Process

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Parties

Steven Stojanovski

Plaintiff

Robert Stojanovski

First Defendant

Jovanka Stojanovski

Second Defendant

Procedural Posture

Application to Amend Pleadings / Interlocutory

Legal Issues

1 Whether the plaintiff should be granted leave to further amend his statement of claim to reinstate a claim for an extension of time to bring a family provision claim
2 Whether the amendment is precluded by principles of res judicata or abuse of process

Ratio Decidendi

Court Disposition

Application to further amend statement of claim allowed.

Orders

Order 1 in the plaintiff's notice of motion dated 4 December 2012 is made.
Costs of and occasioned by the amendment, including the hearing on 7 December 2012, to be the first defendant's costs in the cause.