Mayart Pty Ltd v Knight

[2020] VCC 1610

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-18-04868

MAYART PTY LTD and ORS	Plaintiffs
v
PHILIPPA CHRISTINE KNIGHT and ORS	Defendants

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JUDGE:	HIS HONOUR JUDGE COSGRAVE
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2020
DATE OF RULING:	12 October 2020
CASE MAY BE CITED AS:	Mayart Pty Ltd & Ors v Knight & Ors
MEDIUM NEUTRAL CITATION:	[2020] VCC 1610

REASONS FOR RULING

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr M Wolff	Noble Lawyers Pty Ltd
For the First Defendant
For the Third Defendant	The third defendant appeared in person

HIS HONOUR:

1       The third defendant filed a request for interlocutory determination seeking leave to file an amended defence.  I dismissed the application for several reasons, including:

(a)    the application was very similar in substance to the application by the third defendant which I dismissed in August 2020. In that application the third defendant also sought to file an amended defence;

(b)    there was no sufficient explanation about why the third defendant was applying now to amend, when leave to apply was granted last year;

(c)     the third defendant did not file any, or any detailed, affidavit material about the nature of the proposed amendments and their factual basis;

(d)    the third defendant failed to sufficiently explain the reasons for wanting to withdraw admissions made in the existing defence;

(e)    the proposed amendments faced major factual and/or legal challenges.

2       In circumstances where the plaintiff had to address a second application by the third defendant on the same issue, based on material which was substantially unchanged from the initial application, I consider that a special order providing for indemnity costs is justified.[1]

[1]See Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.

3       Accordingly, I make the following orders in relation to the third defendant’s application to amend his defence:

(a)    the third defendant’s request for interlocutory determination seeking leave to file an amended defence be dismissed;

(b)    the third defendant pay the plaintiffs’ costs of and incidental to the application, such costs to be taxed on an indemnity basis in default of agreement.