This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Appeal
New South Wales
Case Title:
Kelly v Mina
Medium Neutral Citation:
[2014] NSWCA 9
Hearing Date(s):
26 November 2013
Decision Date:
10 February 2014
Before:
Barrett JA at [1]; Ward JA at [100]; Leeming JA at [101]
Decision:
1. Appeal dismissed. 2. That the appellant pay the respondent's costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
APPEAL AND NEW TRIAL - refusal of defendant's amendment application at beginning of trial - judgment for plaintiff - appeal on ground that amendment wrongly disallowed - PROCEDURE - application for leave to amend defence - application made at a very late stage - grounds relied on known to defendant for a long time - no satisfactory explanation of delay - whether leave to amend rightly refused CONTRACTS - contract between individuals concerning business conducted through entities controlled by them - whether promises by the individuals as distinct from their entities affected by want of consideration or lack of privity - where part of document expressed to be "non-binding" - whether that part had contractual force
[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 Kelly v Mina
Sign in free to access the full text
Details
AGLC
Kelly v Mina [2014] NSWCA 9
Case
[2014] NSWCA 9
Decision Date
CaseChat Overview and Summary
The appeal in *Kelly v Mina* concerned a dispute between individuals regarding a business conducted through entities they controlled. The primary issue on appeal was whether the primary judge had erred in refusing the defendant's application to amend their defence at the commencement of the trial. The Court of Appeal, comprising Barrett, Ward and Leeming JJA, was required to determine whether the refusal of this late amendment application was justified, and also to consider the contractual nature of promises made by the individuals, as distinct from their controlled entities, particularly in light of a clause stating part of the document was "non-binding".
The Court of Appeal affirmed the primary judge's decision to refuse the amendment. Their Honours reasoned that the grounds for the proposed amendment were known to the defendant for a considerable period, and no satisfactory explanation was provided for the significant delay in seeking leave to amend the defence. This late stage of the proceedings, coupled with the lack of a compelling reason for the delay, led the Court to conclude that the refusal was a proper exercise of the primary judge's discretion. Furthermore, the Court considered the contractual issues, finding that promises made by the individuals, rather than their entities, were not affected by want of consideration or lack of privity, and that the "non-binding" clause did not preclude the relevant part of the document from having contractual force.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.
Orders
Orders of the court
1. Appeal dismissed.
2. That the appellant pay the respondent's costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]