ABL Nominees Pty Ltd v Mackenzie (No 2)

In the case of ABL Nominees Pty Ltd v Mackenzie (No 2), the dispute centred around an application to amend pleadings and the admissibility of certain evidence. The proceedings took place in the Federal Court of Australia. The plaintiff, ABL Nominees Pty Ltd, sought to amend its pleadings to include new defences, specifically the defence of unconscionable conduct by the lender, and to subpoena the files of a solicitor formerly acting for the defendant to test the accuracy and credit of the defendant's evidence.

The legal issues before the court were twofold: firstly, whether the proposed amendment to include the defence of unconscionable conduct was permissible, and secondly, whether the court should allow the subpoena of the former solicitor's files. The court considered the principles relevant to an application to amend pleadings, including the test for determining whether an amendment would be futile, as outlined in Garcia v National Australia Bank Ltd (1998) 194 CLR 395. The court also assessed whether the proposed pleading disclosed a viable defence.

In its reasoning, the court found that the proposed amendment to include the defence of unconscionable conduct was not futile and was, in fact, a viable defence. The court granted the application to amend the pleadings. However, regarding the subpoena of the former solicitor's files, the court held that such an application was not in the interests of the just, efficient, timely, and cost-effective resolution of the proceeding. The court, therefore, refused this application.

No specific final orders were provided in the text, but the court's decision to allow the amendment to include the defence of unconscionable conduct suggests that the proceedings will continue with this defence included in the plaintiff's case. The refusal to allow the subpoena of the former solicitor's files means that the accuracy and credit of the defendant's evidence will not be tested in this manner.