Horphag Research Ltd v Schwitters Summary

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

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.
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.
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

CaseChat Overview and Summary

In the Federal Court of Australia, Horphag Research Ltd brought an action against Egbert Mensse Schwitters, seeking to amend a specific admission made by Schwitters in his points of defence. The case was heard by Justice Tamberlin and decided on 9 July 1999. Horphag Research Ltd sought to have Schwitters withdraw an admission that was allegedly made inadvertently, as it would have significant implications for the case. The primary issue before the court was whether the admission made by Schwitters was indeed inadvertent, and if so, whether it was appropriate to allow the amendment of the points of defence.

The court considered the evidence provided by both parties. Initially, the affidavit submitted by Daniel Hartley was deemed inadequate to support the claim of inadvertent error. However, additional oral evidence from Ms O'Connell, a partner at Andersen Legal representing Schwitters, was presented. While not entirely conclusive, the court found sufficient grounds to believe that there had been an inadvertent mistake in the points of defence. The court took into account the context in which the admission was made, further supporting the finding of inadvertent error. Consequently, the court granted the application to amend the points of defence, specifically paragraph 19(b), to reflect the correct position. Regarding costs, the court ordered that Schwitters pay the costs incurred by Horphag Research Ltd in relation to the application.

In summary, the Federal Court of Australia allowed the amendment of the points of defence, correcting an inadvertent admission made by the respondent, Schwitters. The court found that the error was inadvertent and granted the application to amend the points of defence accordingly. Furthermore, the court ordered that Schwitters bear the costs of the application.

Horphag Research Ltd v Schwitters

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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

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