Four Seasons Jewellers Pty Ltd v Assetinsure Pty Ltd
[2012] NSWDC 65
•23 April 2012
District Court
New South Wales
Medium Neutral Citation: Four Seasons Jewellers Pty Ltd v Assetinsure Pty Ltd [2012] NSWDC 65 Hearing dates: 23/04/2012 Decision date: 23 April 2012 Before: P Taylor SC DCJ Decision: The defendant's application for leave to file the amended defence is refused with costs.
Catchwords: Application for leave to file amended defence Cases Cited: Amalgamated Television Services v Marsden [1999] NSWCA 313.
Brimaud v Honeysett Instant Print Pty Ltd (NSWSC, 19 September 1988, unreported).Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Interlocutory applications Parties: Four Seasons Jewellers Pty Ltd (plaintiff)
Assetinsure Pty Ltd (defendant)Representation: Mr T Boyd with Mr J Cairn (plaintiff)
Mr J Poulos QC (defendant)
Herbert Weller (plaintiff)
Hicksons Lawyers (defendant)
File Number(s): 2011/152514 Publication restriction: No
Judgment
In this matter Mr Poulos QC, for the defendant, seeks leave to file an amended defence. This application has been heard previously by this Court on Friday, 13 April 2012, some ten days ago. On that occasion, albeit with different representation, the application was dismissed with costs. Mr Boyd, appearing for the plaintiff, submits in the first place that I should not rehear the same matter, and secondly, that the application should fail in any event. I have proceeded to receive some evidence and hear submissions on the application.
As to whether I should entertain the application, McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (NSWSC, 19 September 1988, unreported), referred to in Ritchie's Uniform Civil Procedure NSW at paragraph 25.1.80 on p 7346, stated:
"In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing, in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application."
This passage was adopted with approval by the Court of Appeal in the decision of Amalgamated Television Services v Marsden [1999] NSWCA 313. Other decisions to similar effect are referred to at paragraph 25.1.80 and at paragraph 18.2.10 of Ritchie's Uniform Civil Procedure NSW.
Mr Poulos does not suggest any change of circumstance occurring since the original application was heard, nor has there been any discovery of new material since the original application, subject to one matter which I will deal with below. In those circumstances, I reject the application for amendment according to the ordinary rule of practice. I also think it inappropriate that I embark on the question as to whether I would otherwise refuse the amendment and on what grounds.
The one caveat I make is that Mr Poulos has referred to the late service of an affidavit by the plaintiff. The contents of that affidavit were not to my mind relied upon by either party in this application. I am unaware of the contents of the affidavit and, indeed, whether it will ultimately be relied upon in the trial. If it is sought to be read, Mr Poulos may then make such application as he thinks appropriate. Of course, I should not be taken to be encouraging any such application.
The order of the Court is that the defendant's application for leave to file the amended defence is refused with costs.
I note the matter has taken approximately half a day.
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Decision last updated: 10 May 2012
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