Beckett v Le - [2012] NSWSC 988

Supreme Court

New South Wales

Medium Neutral Citation: Beckett v Le [2012] NSWSC 988
Hearing dates: 15/08/2012
Decision date: 15 August 2012
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) The amended statement of claim filed on 5 June 2012 be struck out.
(2) The notice of motion filed by the plaintiff on 6 August 2012 be dismissed.
(3) The plaintiff is to pay the defendants' costs of the motions filed 23 July 2012 by the defendant and 6 August 2012 by the plaintiff on an indemnity base basis.
(4) Grant leave to the plaintiff to file a motion, if advised, seeking any further amendment of the statement of claim provided such motion is filed on or before 4pm on 24 August 2012.
(5) Order any such motion be returnable before me at 9.30am on 30 August 2012.
(6) Order that the plaintiff file and serve on or before 4pm on 24 August 2012 an affidavit of the plaintiff setting out all facts, matters and circumstances to be relied upon in support of any newly added cause of action or other proposed amendment in the proposed amended statement of claim.

Catchwords: PRACTICE AND PROCEDURE - amended statement of claim filed over five months late, after matter was listed for hearing - notice of motion by defendant seeking the statement of claim be struck out - notice of motion by plaintiff seeking leave to file the statement of claim - plaintiff pleaded new cause of action, manifestly defective - overriding Civil Procedure Act, s 56 consideration, amended statement of claim struck out
Legislation Cited: Civil Liability Act 2002
Drug (Misuse and Trafficking) Act 1985
Uniform Civil Procedure Rules 2005
Cases Cited: Buckman (HC) & Son Pty Limited v Flanagan [1974] HCA 30; (1974) 133 CLR 422
Category: Procedural and other rulings
Parties: Sekneh Beckett (P)
Andrew Tuan Anh Le (D1)
Thoa Van Le (D2)
Boishakhi Das (D3)
Huang Thanh Truong (D4)
Beauty and Health Care Pty Ltd (D5)
Representation: Counsel:
S Hall-Johnson (P)
G R Petty (D1), (D5)

File Number(s): 2010/105762

Judgment

Before the Court today are two notices of motion. The first is that filed by the defendants on 23 July 2012 in which the defendants seek an order that the amended statement of claim filed on 5 June 2012 be struck out and that the plaintiff pay the first and fifth defendants' costs of the application on an indemnity basis.

The second motion which is before the Court today is that filed by the plaintiff on 6 August 2012 in which the plaintiff seeks the following orders:

"1. The previous order of the Court granting the plaintiff leave to file and serve an amended statement of claim be abridged such that the plaintiff now be granted leave to file the amended statement of claim in the form annexed hereto and marked with the letter A.

2. Costs associated with this motion be costs in the cause."

I must say I have taken the order sought in that motion…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Beckett v Le and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWSC 988
Decision Date: 15 August 2012

CaseChat Overview and Summary

The case before the court involved Beckett, the plaintiff, and Le, the defendant. The dispute centred around an amended statement of claim filed by the plaintiff more than five months after the matter was listed for hearing. The defendant subsequently filed a notice of motion seeking to have the statement of claim struck out, while the plaintiff filed a notice of motion seeking leave to file the amended statement of claim. The plaintiff also introduced a new cause of action in the amended statement of claim, which was found to be manifestly defective.

The primary legal issues before the court were whether the plaintiff could be permitted to file an amended statement of claim significantly after the deadline and if the new cause of action pleaded was valid. The court had to consider the overriding provisions of the Civil Procedure Act, particularly section 56, which mandates that the court must not compel a party to a proceeding to engage in a proceeding that is not just and convenient, and that all proceedings must be conducted in a just, quick and cheap way.

The court found that the amended statement of claim was filed well beyond the reasonable time permitted and that the new cause of action pleaded was defective. It concluded that allowing the filing of the amended statement of claim would not be just and convenient, and would not align with the principles set out in the Civil Procedure Act. Consequently, the court struck out the amended statement of claim and denied the plaintiff's application to file it.

The court did not grant leave to the plaintiff to file an amended statement of claim. The plaintiff's notice of motion seeking to file the amended statement of claim was dismissed. The defendant's notice of motion to have the statement of claim struck out was successful.

Orders