Horphag Research Ltd v Schwitters

Case •

[1999] FCA 1013

•

9 JULY 1999

FEDERAL COURT OF AUSTRALIA

Horphag Research Ltd v Schwitters [1999] FCA 1013

HORPHAG RESEARCH LTD v

EGBERT MENSSE SCHWITTERS.
NG 819 of 1998

TAMBERLIN J
SYDNEY
9 JULY 1999


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 819 OF 1998

BETWEEN:

HORPHAG RESEARCH LTD
Applicant

AND:

EGBERT MENSSE SCHWITTERS
Respondent

JUDGE:

TAMBERLIN J

DATE:

9 JULY 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Ex-Tempore Judgment

  1. In this matter an application by notice of motion is made by the respondent to withdraw an admission made in the course of pleading on the ground it was inadvertently made.  The original evidence filed in this matter by Mr Daniel Hartley in his affidavit, in my view, is quite inadequate to support this contention.  However, further oral evidence was adduced by Ms O'Connell, the partner at Andersen Legal with carriage of the matter on behalf of the respondent.  Having regard to the evidence, although not completely conclusive, I am satisfied that on the necessary onus that there had been an inadvertent error in the points of defence.  I come to this finding also taking into account the setting in which the statement was made in paragraph 19(b) of the Points of Defence.

  2. Accordingly, I grant the application in the notice of motion to amend paragraph 19(b) of the Points of Defence, dated 1 December 1998, by amending it to read: "In answer to paragraph 19, the Respondent; … (b) does not admit that…." and so on. 

  3. As far as costs are concerned, I think the respondent ought to pay the costs of the applicant in respect of this application, and I so order.  

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             9 July 1999

Counsel for the Applicant: J Baird
Solicitor for the Applicant: Dunhill Maden Butler, Canberra
Counsel for the Respondent: R Cobden
Solicitor for the Respondent: Andersen Legal
Date of Hearing: 9 July 1999
Date of Judgment: 9 July 1999
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