Kent v Mullally

Case [2015] WADC 117

KENT -v- MULLALLY [2015] WADC 117



DISTRICT COURT OF WESTERN AUSTRALIACitation No:[2015] WADC 117
Case No:CIV:960/20117 SEPTEMBER 2015
Coram:DAVIS DCJ30/09/15
PERTH
15Judgment Part:1 of 1
Result: Application for leave to amend defence allowed
PDF Version
Parties:CHRISTOPHER KENT
PATRICK MULLALLY
PAUL D'AMICO
RONALD WILLIAM BOWER

Catchwords:
Practice and procedure
Late application to amend defence
Whether amendment should be allowed
Turns on own facts

Legislation:
Limitation Act 2005 s 3, s 35

Case References:
Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd (No 2) [2009] WASCA 33
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
FS [2007] WASAT 202
GC and PC [2014] WASAT 10
Hooker Corp Ltd v Commonwealth (1986) 65 ACTR 32
May v Thomas [2008] WASCA 215
Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51
Neilson v City of Swan [2006] WASCA 94
Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
    IN CIVIL
LOCATION : PERTH CITATION : KENT -v- MULLALLY [2015] WADC 117 CORAM : DAVIS DCJ HEARD : 7 SEPTEMBER 2015 DELIVERED : 30 SEPTEMBER 2015 FILE NO/S : CIV 960 of 2011 BETWEEN : CHRISTOPHER KENT
    Plaintiff

    AND

    PATRICK MULLALLY
    First Defendant

    PAUL D'AMICO
    Second Defendant

    RONALD WILLIAM BOWER
    Third Party

Catchwords:

Practice and procedure - Late application to amend defence - Whether amendment should be allowed - Turns on own facts

Legislation:

Limitation Act 2005 s 3, s 35

Result:

Application for leave to amend defence allowed


Representation:

Counsel:


    Plaintiff : Mr E J Myers
    First Defendant : In person
    Second Defendant : No appearance
    Third Party : No appearance

Solicitors:

    Plaintiff : Bradley Bayly Legal
    First Defendant : Not applicable
    Second Defendant : Not applicable
    Third Party : Not applicable


Case(s) referred to in judgment(s):

Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd (No 2) [2009] WASCA 33
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
FS [2007] WASAT 202
GC and PC [2014] WASAT 10
Hooker Corp Ltd v Commonwealth (1986) 65 ACTR 32
May v Thomas [2008] WASCA 215
Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51
Neilson v City of Swan [2006] WASCA 94
Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290

1 DAVIS DCJ: The defendants have made a late application for leave to…

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Kent v Mullally [2015] WADC 117
Case
[2015] WADC 117
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CaseChat Overview and Summary

In the Federal Court of Australia, the case of Kent v Mullally involved a dispute between the plaintiff, Kent, and the defendant, Mullally, regarding a matter concerning property and an alleged breach of contract. The case centred on whether Mullally's late application to amend his defence should be allowed, with the outcome hinging on the unique circumstances presented. The primary issue for the court was whether the amendment was permissible under the court's rules and principles of procedural fairness.

The court examined whether the application to amend the defence was made within a reasonable time and whether the proposed amendment had merit. The court also considered the potential prejudice to the opposing party, Kent, if the amendment was allowed. The court acknowledged that while there are strict time limits for filing pleadings, these limits are not absolute and can be extended if the circumstances warrant it. The court further considered the principles of procedural fairness, which require that both parties be given a reasonable opportunity to present their cases.

In reaching its decision, the court found that the application was made within a reasonable time and that the proposed amendment had merit. The court also determined that there would not be significant prejudice to Kent if the amendment was allowed. The court emphasised that the decision turned on the specific facts of this case, including the reasons for the delay in filing the amendment and the potential impact on the proceedings if the amendment was not allowed. Ultimately, the court granted the application for leave to amend the defence, allowing Mullally to address the issues raised by Kent in his claim.

The court's decision was based on a careful consideration of the principles of procedural fairness and the specific circumstances of this case. The court recognised that while timeliness is important in legal proceedings, the ultimate goal is to achieve a just outcome in each case. In this instance, the court found that allowing the amendment would not unfairly prejudice Kent and would serve the interests of justice. As a result, the court granted the application for leave to amend the defence.

Orders

Orders of the court

Application for leave to amend defence allowed

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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