Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: J & E Vella Pty Ltd v Hobson [2020] NSWCA 188 Hearing dates: 23 June 2020 Decision date: 24 August 2020 Before: Bell P at [1];
Basten JA at [1];
White JA at [1]Decision: 1. Grant leave to the applicants to appeal from the orders of 11 November 2019.
2. Order the applicants file a notice of appeal in the form of the draft notice of appeal at Tab 8 of the White Book.
3. Allow the appeal in part.
4. Set aside the order of the primary judge of 11 November 2019 granting leave to the plaintiffs to file an amended statement of claim in a form consistent with the judgment of the primary judge of that date.
5. In lieu thereof, order that leave be granted to the appellants to file an amended statement of claim in a form incorporating the amendments in paras 40A-48 of the statement of claim in annexure A to the interlocutory process filed on 30 October 2019.
6. Order that the respondents pay the appellants’ costs of the appeal.
7. Set aside the orders for costs of 11 November 2019 of the primary judge in respect of the costs of the interlocutory process of 30 October 2019.
8. In lieu thereof order that the costs of the interlocutory process filed 30 October 2019 be the appellants’ costs in the proceedings.
Catchwords: CIVIL PROCEDURE – Pleadings – Application for leave to appeal from refusal of leave to amend statement of claim – Whether primary judge failed to consider the prejudice to the applicants – Where separate proceedings would be antithetical to the just, quick and cheap determination of the real issues between the parties
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64
Partnership Act 1892 (NSW), Pt 2 Div 3, s 32(c)
Supreme Court Act 1970 (NSW), s 63
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Beach Petroleum NL v Kennedy & Ors (1999) 48 NSWLR 1
Crawley v Short [2009] NSWCA 410; (2009) 262 ALR 654
House v The King (1936) 55 CLR 499; [1936] HCA 40
In the matter of Beverage Freight Services Pty Ltd [2019] NSWSC 1684
Macquarie Bank Limited v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543
O’Halloran v RT Thomas & Family Pty Ltd (1998) 45 NSWLR 262
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Texts Cited: J D Heydon, Heydon on Contract (Lawbook Co. 2019)
Category: Principal judgment Parties: J & E Vella Pty Ltd (First Appellant)
Joseph Gregory John Vella (Second Appellant)
Brian Charles Hobson (First Respondent)
Hynadam Pty Ltd ACN 002 478 828 (Second Respondent)
Brett Soper (Third Respondent)
Mechita Pty Ltd ACN 063 519 915 (Fourth Respondent)
Beverage Freight Services Pty Limited ACN 097 919 769 (Fifth Respondent)
Beverage Distribution Australia Pty…
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- Case
- [2020] NSWCA 188
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the primary judge had erred in refusing leave to amend the statement of claim, specifically by failing to adequately consider the prejudice to the appellants. The court was required to determine if the proposed amendments were necessary for the just, quick, and cheap determination of the real issues between the parties, and whether the refusal to allow amendment would lead to antithetical separate proceedings.
The Court of Appeal reasoned that the primary judge had not sufficiently considered the prejudice to the appellants and that allowing the amendments would serve the interests of justice by facilitating a more comprehensive resolution of the dispute. The court applied principles relating to the amendment of pleadings, emphasizing the importance of allowing amendments that address the substantive issues in dispute, provided that undue prejudice to the opposing party can be managed. The court found that the proposed amendments were not frivolous or vexatious and were directed at clarifying the real issues.
Consequently, the Court of Appeal granted leave to appeal in part, allowing the appeal to set aside the primary judge's order of 11 November 2019. In lieu of that order, the court granted the appellants leave to file an amended statement of claim incorporating specific amendments. The court also made orders regarding the costs of the appeal and the interlocutory process.
Orders
Orders of the court
1. Grant leave to the applicants to appeal from the orders of 11 November 2019.
2. Order the applicants file a notice of appeal in the form of the draft notice of appeal at Tab 8 of the White Book.
3. Allow the appeal in part.
4. Set aside the order of the primary judge of 11 November 2019 granting leave to the plaintiffs to file an amended statement of claim in a form consistent with the judgment of the primary judge of that date.
5. In lieu thereof, order that leave be granted to the appellants to file an amended statement of claim in a form incorporating the amendments in paras 40A-48 of the statement of claim in annexure A to the interlocutory process filed on 30 October 2019.
6. Order that the respondents pay the appellants’ costs of the appeal.
7. Set aside the orders for costs of 11 November 2019 of the primary judge in respect of the costs of the interlocutory process of 30 October 2019.
8. In lieu thereof order that the costs of the interlocutory process filed 30 October 2019 be the appellants’ costs in the proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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