Bytewin Bros v Classic Tiles

Bytewin Bros, the plaintiff, commenced proceedings against Classic Tiles, the defendant, in the County Court of Victoria seeking damages for breach of contract. The defendant filed a Notice of Defence, which was subsequently struck out for non-compliance with the court's directions. The defendant then attempted to file an Amended Notice of Defence, which the plaintiff objected to on the basis that the original Notice of Defence had already been struck out. The defendant applied to the court to set aside the order striking out the original Notice of Defence and to permit the filing of the Amended Notice of Defence. The court was required to determine whether the defendant's application to set aside the order was an error of law.

The court held that the defendant's application to set aside the order was an error of law. The court found that once a notice of defence had been struck out, the defendant could not simply file an amended notice of defence without leave of the court. The court further found that the defendant had not demonstrated any grounds for leave to appeal, and that the application to set aside the order was an abuse of process. The court dismissed the defendant's application and ordered that the defendant pay the plaintiff's costs of the application.

In light of the above, the court found in favour of the plaintiff and ordered that judgment be entered in favour of the plaintiff and against the defendant in the sum of $50,000, together with interest and costs. The court also ordered that the defendant pay the plaintiff's costs of the application on an indemnity basis.