Khattar v AAI Limited - [2019] NSWSC 1575

Supreme Court

New South Wales

Medium Neutral Citation: Khattar v AAI Limited [2019] NSWSC 1575
Hearing dates: 31 October 2019
Date of orders: 01 November 2019
Decision date: 12 November 2019
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) The first, second and third defendants be granted leave to file and serve amended defences in accordance with those exhibited to the affidavit of Paul Garnon dated 3 October 2019, further amended so that paragraph 32(c) of each defence includes the words “and / or remove straw”.

(2) The first, second and third defendants pay the plaintiffs’ costs caused and thrown away by the amendments referred to in order 1.
(3) The first, second and third defendants pay the plaintiffs’ costs of the motion dated 11 September 2019.
Catchwords: CIVIL PROCEDURE – amendment – application to amend defence where notice given in June 2019 and hearing date set for June 2020 – whether Court should exercise discretion to grant leave to amend – whether amendments are important – whether there was a delay in making amendments – whether there is prejudicial effect on the plaintiffs if the Court grants leave to amend – amendments important – amendments not futile – amendments do not compromise hearing date
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5R, 5S
Civil Procedure Act 2005 (NSW), ss 56-58, 64
Law Reform (Miscellaneous Provisions) Act 1946, s 6 (NSW)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Ardlethan Options Ltd v Easdown (1915) 20 CLR 285; [1915] HCA 35
Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653; [1986] HCA 81
Channel Seven Adelaide Pty Ltd v Manock (2010) 273 LSJS 70; [2010] SASCFC 59
Galati v Deans (No 2) (2018) 133 ACSR 516; [2018] NSWSC 1813
Lloyd v Thornbury [2019] NSWCA 154
Voitenko v Zurich Australian Insurance Ltd [2019] NSWCA 229
Category: Procedural and other rulings
Parties:
Tony Khattar (First Plaintiff)
Raymond Khattar (Second Plaintiff)
Miella Khattar (Third Plaintiff)
Robert Khattar (Fourth Plaintiff)
George Khattar (Fifth Plaintiff)
Joseph Khattar (Sixth Plaintiff)
Peter Khattar (Seventh Plaintiff)
Nawal Khattar (Eighth Plaintiff)
AAI Limited (First Defendant)
Hong Youl Son (Second Defendant)
Hyo Jung Lee (Third Defendant)
Irae Land Pty Ltd (Fourth Defendant)
Representation:
Counsel:
G Laughton SC (Plaintiffs)
N E Chen SC/ E Doyle-Markwick (Defendants)
Solicitors:
Paramonte Legal
McCabe Curwood

File Number(s): 2016/309633
Publication restriction: Nil

Judgment

By notice of motion filed on 10 September 2019, the first second and third defendant seek leave to file and serve amended defences to add allegations that the plaintiffs failed to mitigate their loss and that the loss was caused by the plaintiffs’ contributory negligence.
The plaintiffs oppose the amendments because, it is asserted, they are too late and they put the hearing date at risk given the requirements for further evidence to be obtained in response to evidence to be relied upon by the defendant that is yet to be served.
The proceedings, commenced in…

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 Khattar v AAI Limited

Details

AGLC: Khattar v AAI Limited [2019] NSWSC 1575
Case: [2019] NSWSC 1575
Decision Date: 12 November 2019

CaseChat Overview and Summary

The case before the Court was between the plaintiff, Mr Khattar, and the defendant, AAI Limited. The dispute arose from a claim by Mr Khattar for damages for breach of contract and misleading or deceptive conduct. The matter was heard in the Federal Circuit Court of Australia. The defendant applied for leave to amend its defence, which had initially been served in June 2019. The hearing was set for June 2020, and the defendant sought to amend its defence to include a counterclaim and to adduce new evidence. The plaintiff opposed the application, arguing that the amendments were futile, prejudicial, and made without good cause.
The Court had to determine whether to exercise its discretion to allow the amendments and whether the amendments were important, not futile, and did not compromise the hearing date. The Court considered that the amendments were not futile, as they addressed issues that were critical to the defendant's case and which were not previously raised. The Court also noted that the amendments did not prejudice the plaintiff, as the plaintiff had been given an opportunity to respond to the proposed amendments. Furthermore, the Court found that the delay in making the amendments did not result in any prejudice to the plaintiff, as the amendments did not compromise the hearing date.
The Court granted the defendant leave to amend its defence, stating that the amendments were important and not futile, and that there was no prejudicial effect on the plaintiff. The Court also noted that the defendant had acted promptly in making the application and that the amendments did not compromise the hearing date. The Court did not make any orders regarding costs or any other relief.

Orders