Le v Brown; Nguyen v Brown; Tran v Brown; Monica v Brown; Huggett v Brown [2017] NSWSC 632

Le v Brown; Nguyen v Brown; Tran v Brown; Monica v Brown; Huggett v Brown [2017] NSWSC 632

Although Futurewood's amendment was late, introduced a new issue and arose from forensic choices made by its lawyers, QBE had not shown any actual prejudice, had known the nature of the amendment since the end of February 2017, had not previously opposed reliance on the related report, and had largely conducted the litigation by reference to insurance policy issues rather than underlying facts. Balancing the matters required by the Civil Procedure Act 2005 (NSW), the interests of justice required that the amendment be permitted so that all issues could be dealt with to finality.

Jurisdiction
Australia
Judgment Date
08 May 2017
Procedural Posture
Procedural Ruling in Common Law Proceedings Concerning Leave to File an Amended Statement of Cross Claim / Notice of Motion Objecting to the Filing of the Amended Statement of Cross Claim; Application for Leave Nunc Pro Tunc
Outcome
Leave granted nunc pro tunc to Futurewood Pty Ltd to file the Amended Statement of Cross-Claim and proceed on that pleading as amended on 8 May 2017.
Legal Topics
['amendment of Pleadings' 'cross Claims' 'late Amendment' 'prejudice' 'dictates of Justice' 'uniform Civil Procedure Rules R 14.28']
['practice and Procedure' 'civil Procedure'] ['amendment of Pleadings' 'cross Claims' 'late Amendment' 'prejudice' 'dictates of Justice' 'uniform Civil Procedure Rules R 14.28']

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Procedural Posture

Procedural Ruling in Common Law Proceedings Concerning Leave to File an Amended Statement of Cross Claim / Notice of Motion Objecting to the Filing of the Amended Statement of Cross Claim; Application for Leave Nunc Pro Tunc

Legal Issues

  1. 1 ['Whether Futurewood Pty Ltd should be granted leave nunc pro tunc to file the Amended Statement of Cross-Claim in the form filed on 23 February 2017 and as amended on 8 May 2017.' 'Whether the late amendment, which introduced a new pleaded issue, should be refused because of prejudice to QBE Insurance (Australia) Limited.' 'Whether the interests of justice under the Civil Procedure Act 2005 (NSW) required the amendment to be permitted despite its lateness.']

Ratio Decidendi

Although Futurewood's amendment was late, introduced a new issue and arose from forensic choices made by its lawyers, QBE had not shown any actual prejudice, had known the nature of the amendment since the end of February 2017, had not previously opposed reliance on the related report, and had largely conducted the litigation by reference to insurance policy issues rather than underlying facts. Balancing the matters required by the Civil Procedure Act 2005 (NSW), the interests of justice required that the amendment be permitted so that all issues could be dealt with to finality.

Court Disposition

Leave granted nunc pro tunc to Futurewood Pty Ltd to file the Amended Statement of Cross-Claim and proceed on that pleading as amended on 8 May 2017.

Orders

  • ['Grant leave nunc pro tunc to Futurewood Pty Ltd to file the Amended Statement of Cross Claim in the form in which it was filed on 23 February 2017.' 'The matter is to proceed on the basis of that pleading, amended as it was on 8 May 2017.']