Floyd v Nevgold Pty Ltd (No 2)

DISTRICT COURT OF QUEENSLAND

CITATION:

Floyd v Nevgold Pty Ltd (No 2) [2024] QDC 230

PARTIES:

MALCOLM LEWIS FLOYD

(plaintiff)

v

NEVGOLD PTY LTD AS TRUSTEE OF BRIAN JORGENSEN FAMILY TRUST

(defendant)

FILENO:

109/23

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court

DELIVEREDON:

15 November 2024 (ex tempore)

DELIVEREDAT:

Brisbane

HEARINGDATE:

15 November 2024

JUDGE:

Porter KC DCJ

ORDER:

1.   Leave to file a second further amended defence and counterclaim in the form exhibited to the affidavit of Ms Sakshi Bhati affirmed November 2024 is refused.

2.   Leave to make the amendment in paragraph 8(g) of the second further amended defence and counterclaim in the form exhibited in the affidavit of Ms Sakshi Bhati affirmed 15 November 2024 be granted, except insofar as it related to the “Third and Fourth Breaches”.

3.   The defendant pay the costs of the application filed today on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – ORIGINATING PROCESS, PLEADINGS

ETC – where the defendant seeks to file a second further amended defence – where the application is brought one business day before the trial – where the defendant, a month before the trial, was granted leave to substantially amend the defence – where this further amendment sought today raises a new case of substance – where the defendant concedes most of

the documents required for the new case were produced to the defendant in September – where an adjournment of the trial

would be required should leave be granted – where the trial has been listed for nearly four months and is otherwise ready to proceed – where the defendant is not devoid of credible defences – whether leave to file the second further amended defence and counterclaim be granted

CASES:

Sellars v Adelaide Petroleum (1994) 179 CLR 332

LEGISLATION:

Property Occupations Act 2014 (Qld), s. 99(1)

COUNSEL:

C J Ryall for the plaintiff

J P Hastie for the defendant

SOLICITORS:

O’Reilly’s Stevens for the plaintiff Rostron Carlyle Rojas for the defendant

Timing of the application

1. This is an application by the defendant for leave to file a second further amended defence and counterclaim (SFADC). That application was brought on urgently because this matter is listed to commence for trial in the Cairns on Monday next week. The proposed pleading was therefore delivered one clear business day before the commencement of the trial.

2. This matter was listed for trial, at the latest, on the 23^rd of July 2024. There’s some indication on the file it might have been a week or two sooner than that, but I am going to rely on the date Mr Hastie, who appeared for the application, gave me.

3. It the best part of four months since the matter was set down for trial. The defendant had sought and obtained leave substantially to amend its defence by her Honour Judge Rosengren on 9 October 2024. That was a bit over a month before the trial. I do…