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Ingot v Macquarie [No.3]

Ingot v Macquarie [No.3]

Case [2005] NSWSC 255 4 April 2005

Civil Litigation & Procedure

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CITATION:
Ingot v Macquarie [No 3] [2005] NSWSC 255

HEARING DATE(S): 10 March 2005

JUDGMENT DATE :

4 April 2005

JUDGMENT OF:
McDougall J at 1

DECISION:
See paras [71]-[73] of judgment

CATCHWORDS:
PRACTICE AND PROCEDURE - application for leave further to amend summons - whether appropriate to grant leave to amend outside limitation period - whether general power of amendment in Pt 20 r 1 is limited by Pt 20 r 4 - whether leave should be refused because of insufficient particulars - whether leave should be refused because amendment would result in vacation of hearing date - whether leave should be refused because proposed amendments amount to "bargaining" with the Court - whether costs orders on indemnity basis sufficient to compensate defendants for costs thrown away by amendment - whether defendants prejudiced by amendments alleging actual breaches of the law - whether refusal of leave to amend likely to occasion any significant prejudice to plaintiffs

LEGISLATION CITED:
Legal Profession Act 1987
Limitation Act 1969
Partnership Act 1892
Supreme Court Act 1970

CASES CITED:
Air Link Pty Ltd v Paterson [No 2] (2003) 58 NSWLR 388
Australia and New Zealand Banking Group Ltd v Larcos (1987) 13 NSWLR 286
Baldry v Jackson [1976] 2 NSWLR 415
Bebonis v Angelos (2003) 56 NSWLR 127
Clutha Ltd v Millar (No 2) [2002] NSWSC 523
Digi-Tech (Aust) Ltd v Brand [2004] NSWCA 58
Fernance v Nominal Defendant (1989) 17 NSWLR 710
McGee v Yeomans [1977] 1 NSWLR 273
New Cap Reinsurance Corporation v Reaseguros Alianza SA [2004] NSWSC 787
Proctor v Jetway Aviation Pty Ltd (1984) 1 NSWLR 166
Weldon v Neal (1887) 19 QBD 394

PARTIES:
Ingot Capital Investments Pty Ltd & Ors (Plaintiffs)
Macquarie Equity Capital Markets Ltd & Ors (Defendants)

FILE NUMBER(S):
SC 50169/01

COUNSEL:
F M Douglas QC/B F Katekar (Plaintiffs)
A S Bell (for the Macquarie parties)
N Smith (12th Defendant)
T F Bathurst QC/S M Nixon (13th Defendant)
R Dick/J Watson (14th Defendant)
L McCallum for NCRA

SOLICITORS:
Deacons (plaintiffs)
Mallesons Stephen Jaques (Macquarie parties)
Atanaskovic Hartnell (4th defendant)
Colin Biggers & Paisley (5th, 7th and 8th defendants and mention for the 9th defendant)
M D Nikolaidis & Co (11th defendant)
Minter Ellison (12th defendant)
Blake Dawson Waldron (13th defendant)
Henry Davis York (NCRA)
TressCox (Guy Carpenter)

LOWER COURT JURISDICTION:

INGOT & ORS v MACQUARIE & ORS [No 3] [2005] NSWSC 255

50169/01

INDEX

Para

The Court’s power to amend 3

Authorities on amendment and Part 20 7

The nature of the amendments 34

Analysis 38

Discretionary and other considerations 42

Pleading issues 43

Alleged lack of adequate explanation 48

Personal prejudice 51

Costs 52

Phillips Fox’ “third party” argument 56

Vacation of the hearing date 57

The Digi-Tech point 59

“Bargaining” 60

Discovery 68

Cumulative effect of discretionary submissions 69

The remaining amendments 70

Conclusion and order 71

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

Monday 4 April 2005

MACQUARIE EQUITY CAPITAL MARKETS LTD & ORS

[No 3]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ingot v Macquarie [No.3]

Details

AGLC: Ingot v Macquarie [No.3] [2005] NSWSC 255
Case: [2005] NSWSC 255
Decision Date: 4 April 2005

CaseChat Overview and Summary

The case of Ingot v Macquarie [No.3] involved an application for leave to further amend a summons. The plaintiffs sought to amend their summons in an attempt to address deficiencies in their initial pleadings. The application was brought before the court, which had to consider the various legal issues that arose from this request. The primary issues for determination were whether the court should grant leave for an amendment outside the limitation period, whether the power of amendment in Part 20 Rule 1 was constrained by Part 20 Rule 4, and if the leave should be refused due to insufficient particulars or other factors such as the impact on the hearing date and the defendants' costs.

The court examined the plaintiffs' application for leave to amend their summons in light of the procedural rules governing amendments to pleadings. The court considered whether the power to amend in Part 20 Rule 1 was subject to the limitations imposed by Part 20 Rule 4, which sets out circumstances where leave to amend might be refused. The court also weighed the potential prejudice to the defendants, including the impact on their costs and the feasibility of vacating the hearing date, as well as the nature of the proposed amendments and whether they constituted a form of "bargaining" with the court. The court ultimately determined that the defendants would be adequately compensated for the costs incurred by the amendment through an indemnity costs order and found that the plaintiffs' amendments did not significantly prejudice the defendants' case. Consequently, the court decided to grant leave for the plaintiffs to further amend their summons, despite the potential issues raised by the defendants.

Orders