Khoury v Coffey Projects (Australia) Pty Ltd

The appeal concerned an interlocutory decision of the primary judge who refused the applicant leave to amend his statement of claim and summarily dismissed the proceedings against the respondent. The applicant, Mr. Khoury, brought claims against the respondent, Coffey Projects (Australia) Pty Ltd, for misleading and deceptive conduct and negligence. The central issue was whether the primary judge erred in refusing leave to amend and dismissing the proceedings on the basis that the cause of action had unarguably accrued no later than 30 November 2008, thereby raising a limitation period defence.

The court was required to determine whether the primary judge had erred in refusing leave to amend the statement of claim and in summarily dismissing the proceedings. This involved considering whether the proposed amendments would have introduced a cause of action that was arguably not out of time, and whether the primary judge correctly applied the principles governing summary dismissal and the grant of leave to amend pleadings.

The Court of Appeal found that the primary judge had erred in refusing leave to amend the statement of claim. The court reasoned that the proposed amendments were not unarguably futile and that the applicant should have been granted leave to amend his pleadings. The court applied the principles that leave to amend should generally be granted unless the amendment is unarguably bad, and that summary dismissal is a drastic remedy that should only be granted in clear cases. Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders of the primary judge. The court dismissed the respondent's amended notice of motion, granted the applicant leave to file an amended statement of claim, and made orders regarding costs.