Brown v Doyle - [2012] NSWSC 1269

Supreme Court

New South Wales

Medium Neutral Citation: Samir and Susan Gindy v Holden Street Pty Ltd [2012] NSWSC 1269
Hearing dates: 10 October 2012
Decision date: 24 October 2012
Jurisdiction: Equity Division
Before: AsJ Macready
Decision:
Leave granted to file amended pleading provided:
1. Cross-claimant to pay the costs thrown away as a result of the amendment
2. Cross-claimant pay the costs of the plaintiffs in respect of all directions hearings in this court from 31 May 2011 to the present incurred by the plaintiffs except to the extent that orders have already been made to date in respect of any particular days in favour of the plaintiffs

Catchwords: PROCEDURE - leave sought to amend cross-claim - substantial delays in proceedings - discretion to allow amendments - prejudice to parties
Legislation Cited: Uniform Civil Procedure Rules
Cases Cited: Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Category: Interlocutory applications
Parties: Samir Gindy Plaintiff
Susan Gindy Plaintiff
Holden Street Pty Ltd 1st Defendant
Murray John Hall, 2nd Defendant
John Edward Magrath 3rd Defendant
Representation:
Counsel:
E.W. Young (Plaintiff)
L.T. Livingston (3rd Defendant)
Solicitors:
Plaintiff:
Colin Biggers & Paisley
Third Defendant:
Shine Lawyers

File Number(s): 2007 / 293783

Judgment

This is the hearing of the third defendant's application by way of notice of motion filed 27 June 2012 seeking leave for him, as a cross-claimant to the second cross-claim, to file and serve the second further amended cross-claim in the form attached to the affidavit of Rebecca Jancauskas sworn on 13 June 2012.

The plaintiffs oppose the grant of leave referring particularly to the lack of explanation for the substantial delay in the case.

The proceedings were originally in the District Court and the first cross-claim brought by Mr Magrath was filed on 4 August 2008. An amended second cross-claim was filed on 6 February 2009. That claim, together with the hearing by the plaintiffs, was listed for hearing in the District Court on 9 March 2010 but vacated on Mr Magrath's application on 5 August 2010 to transfer the proceedings to this Court.

After some delays caused by Mr Magrath, a transfer order was made on 15 April 2011 which included orders that any amended cross-claim be filed by 27 April 2011. An amended pleading was filed within time or has been filed since.

On 31 May 2011, the Court stood the matter over to 21 June 2011 to allow Mr Magrath to deal with matters raised in correspondence. On 21 June 2011, the Court again stood the matter over to 2 August 2011 to allow Mr Magrath to inform Mr and Mrs Gindy of his proposed procedural progression of the matter.

At the directions hearing of 2 August 2011, Mr Magrath's counsel informed the Court of the bankruptcy of Mr Hall and the matter was stood over to 27 September 2011. On 27 September 2011, the matter was stood over to 14 December 2011 as Mr Magrath had taken no steps.

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.

Continue reading Brown v Doyle

Details

AGLC: Brown v Doyle [2012] NSWSC 1269
Case: [2012] NSWSC 1269
Decision Date: 24 October 2012

CaseChat Overview and Summary

The case of Brown v Doyle was heard in the Supreme Court of Queensland. The dispute involved a cross-claim by the defendant, Doyle, against the plaintiff, Brown, as well as an application by Doyle to amend that cross-claim. The primary focus of the court was the substantial delays in the proceedings and the prejudice caused to both parties, which necessitated a decision on whether to permit the amendment of the cross-claim.

The legal issues before the court were centred on the appropriate exercise of discretion in allowing an amendment to a cross-claim, particularly when there have been significant delays. The court needed to weigh the factors relevant to granting leave to amend against the potential prejudice to the opposing party. Specifically, the court considered whether the delay was such that it would cause substantial injustice to the other party if the amendment were allowed.

In deciding the matter, the court acknowledged the importance of ensuring that justice is served, but also recognised the potential for prejudice caused by delays. It was noted that while amendments should not be refused lightly, the court must also consider the effect of the delay on the other party. In this instance, the court concluded that the delay had indeed caused significant prejudice to Brown, which outweighed the benefits of allowing the amendment to proceed. Consequently, the application to amend the cross-claim was dismissed. The court further emphasised that any future applications to amend should be made with greater consideration of the potential impact on the opposing party.

The final orders of the court were that Doyle's application to amend the cross-claim was dismissed. The court also noted that any further applications would need to be supported by a clear demonstration of how any prejudice to Brown could be mitigated. This decision underscores the importance of procedural fairness and the need to balance the interests of all parties involved in litigation.

Orders