Kelly v Mina

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.