Mongey v Demetriou and Anor [2019] NSWSC 913

Mongey v Demetriou and Anor [2019] NSWSC 913

Leave to amend was granted because the Second Defendant and her solicitor were unaware until November 2018 of the evidence said to support the new defence, the initial delay in notifying the Plaintiff was reasonable in the circumstances, later delay was partly explained by security for costs issues, the existing Defence already contained related features, the proposed amendment was reasonably arguable, and the hearing date could be maintained with procedural orders protecting the Plaintiff's opportunity to respond.

Jurisdiction
Australia
Judgment Date
15 July 2019
Procedural Posture
Civil Proceedings in Debt and for Breach of Contract / Notice of Motion by the Second Defendant for Leave to File an Amended Defence Before Final Hearing
Outcome
Notice of Motion allowed; the Second Defendant was granted leave to file an Amended Defence, with consequential timetable and costs orders.
Legal Topics
['amendment of Pleadings' 'leave to Amend Defence' 'delay' 'arguable Defence' 'costs Thrown Away' 'contracts Review Act Defence']
['civil Procedure' 'contract Law'] ['amendment of Pleadings' 'leave to Amend Defence' 'delay' 'arguable Defence' 'costs Thrown Away' 'contracts Review Act Defence']

Case Brief

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Procedural Posture

Civil Proceedings in Debt and for Breach of Contract / Notice of Motion by the Second Defendant for Leave to File an Amended Defence Before Final Hearing

Legal Issues

  1. 1 ['Whether the Second Defendant should be granted leave to file an Amended Defence.' 'Whether the proposed amendment was reasonably arguable.' 'Whether delay, including alleged tactical delay, should prevent leave to amend.' 'Whether the hearing date could be maintained with appropriate procedural orders.' 'What costs orders should be made following the amendment application.']

Ratio Decidendi

Leave to amend was granted because the Second Defendant and her solicitor were unaware until November 2018 of the evidence said to support the new defence, the initial delay in notifying the Plaintiff was reasonable in the circumstances, later delay was partly explained by security for costs issues, the existing Defence already contained related features, the proposed amendment was reasonably arguable, and the hearing date could be maintained with procedural orders protecting the Plaintiff's opportunity to respond.

Court Disposition

Notice of Motion allowed; the Second Defendant was granted leave to file an Amended Defence, with consequential timetable and costs orders.

Orders

  • ['The Second Defendant is granted leave to file an Amended Defence in the form of Annexure A to the Notice of Motion filed on 5 July 2019.' "The Second Defendant is to pay the Plaintiff's costs thrown away by the amendment which the Court has allowed." 'The Plaintiff is to file and serve a Reply, if any, to the...