(1) I grant leave to the applicant to amend the summons filed on 7 November 2024 as follows:
(a) under the heading “Declaratory Orders” of the amended summons being annexure “A” to the applicant’s affidavit affirmed 16 May 2025 (“the amended summons”), in the terms “the grant of consent invalid”;
(b) in the terms of orders 1, 2, 3, 5, 8, 9 and 10 of the amended summons;
(c) in the terms of paragraphs 1, 2 and 3 under the heading “Details of Decision” in the amended summons, with the exception of particular (g) of Ground 1 which is struck out;
(d) in the terms of Grounds 1, 2, 3, 4, 9, 11, 14, 15 and 16 of the amended summons;
(e) in the terms of Ground 10. In that ground, I strike out the whole of particulars 6(a) and 6(b) and only the word “perversely” in particular 6(f) and leave is refused for those particulars in the amended summons; and
(f) in the terms of the first Ground 13 in the amended summons, in that ground, I strike out particulars (i)-(v) and particular 16(m) and leave is refused for those particulars in the amended summons.
(2) I refuse leave to amend the summons filed on 7 November 2024 as follows:
(a) under the heading “Declaratory Orders” in the amended summons, all sentences except for “the grant of consent invalid” are struck out;
(b) in the terms of orders 4, 6, 7 and 11 in the amended summons which are struck out;
(c) in the terms of paragraphs 4, 5 and 6 under the heading “Details of Decision” in the amended summons which are struck out;
(d) in the terms of Grounds 5, 7, 12, 17 and the second Ground 13 in the amended summons which are struck out; and
(e) in the terms of paragraph 23 under the heading of “costs” on page 29 in the amended summons which is struck out.
(3) Direct the applicant to file an amended summons strictly reflecting orders (1) and (2) within 7 days. The amended summons should be renumbered according to and consistent with these orders.
(4) The applicant is to pay the first and second respondents’ and the third respondent’s costs of the strike out motions settled on 10 March 2025.
(5) The applicant is to pay the first and second respondents’ and the third respondent’s costs of the motion heard on 4 June 2025.
Catchwords:
CIVIL PROCEDURE – application to amend summons seeking declaratory relief – leave to amend summons – marked differences between proposed amended pleadings and current pleadings – whether amended pleadings disclosed reasonable cause of action – whether amended pleadings embarrassing – where allegations of dishonesty, collusion and abuse of process – whether arguable evidential basis for allegations…
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 Joseph v Spencer (No 2)
Sign in free to access the full text
Details
AGLC
Joseph v Spencer (No 2) [2025] NSWCA 138
Case
[2025] NSWCA 138
Decision Date
CaseChat Overview and Summary
In *Joseph v Spencer (No 2)*, the applicant sought leave to amend a summons that originally sought declaratory relief. The dispute concerned proposed amended pleadings that contained significant differences from the current pleadings, including allegations of dishonesty, collusion, and abuse of process. The court was required to determine whether the amended pleadings disclosed a reasonable cause of action, whether they were embarrassing, and whether there was an arguable evidential basis for the serious allegations made. Additionally, the court considered the dictates of justice, including whether the applicant's changes in position caused significant injustice or procedural unfairness, and the costs associated with settled strike-out motions and a motion to re-plead.
The court, presided over by Price AJA, granted leave to amend the summons in part, allowing specific declaratory orders, certain grounds, and parts of the "Details of Decision" section to proceed. However, leave was refused for other proposed declaratory orders, specific numbered orders, further paragraphs under "Details of Decision," and several grounds, including allegations of perversely acting and specific particulars within those grounds. The court struck out substantial portions of the proposed amendments, indicating that not all of the applicant's proposed changes met the threshold for amendment.
The applicant was directed to file an amended summons reflecting the granted and refused amendments within seven days, with renumbering to ensure consistency. Furthermore, the applicant was ordered to pay the costs of the first and second respondents, and the third respondent, for both the strike-out motions settled on 10 March 2025 and the motion heard on 4 June 2025, indicating that the applicant's conduct in these matters was deemed unreasonable.
Orders
Orders of the court
(1) I grant leave to the applicant to amend the summons filed on 7 November 2024 as follows:
(a) under the heading “Declaratory Orders” of the amended summons being annexure “A” to the applicant’s affidavit affirmed 16 May 2025 (“the amended summons”), in the terms “the grant of consent invalid”;
(b) in the terms of orders 1, 2, 3, 5, 8, 9 and 10 of the amended summons;
(c) in the terms of paragraphs 1, 2 and 3 under the heading “Details of Decision” in the amended summons, with the exception of particular (g) of Ground 1 which is struck out;
(d) in the terms of Grounds 1, 2, 3, 4, 9, 11, 14, 15 and 16 of the amended summons;
(e) in the terms of Ground 10. In that ground, I strike out the whole of particulars 6(a) and 6(b) and only the word “perversely” in particular 6(f) and leave is refused for those particulars in the amended summons; and
(f) in the terms of the first Ground 13 in the amended summons, in that ground, I strike out particulars (i)-(v) and particular 16(m) and leave is refused for those particulars in the amended summons.
(2) I refuse leave to amend the summons filed on 7 November 2024 as follows:
(a) under the heading “Declaratory Orders” in the amended summons, all sentences except for “the grant of consent invalid” are struck out;
(b) in the terms of orders 4, 6, 7 and 11 in the amended summons which are struck out;
(c) in the terms of paragraphs 4, 5 and 6 under the heading “Details of Decision” in the amended summons which are struck out;
(d) in the terms of Grounds 5, 7, 12, 17 and the second Ground 13 in the amended summons which are struck out; and
(e) in the terms of paragraph 23 under the heading of “costs” on page 29 in the amended summons which is struck out.
(3) Direct the applicant to file an amended summons strictly reflecting orders (1) and (2) within 7 days. The amended summons should be renumbered according to and consistent with these orders.
(4) The applicant is to pay the first and second respondents’ and the third respondent’s costs of the strike out motions settled on 10 March 2025.
(5) The applicant is to pay the first and second respondents’ and the third respondent’s costs of the motion heard on 4 June 2025.