Legal Research
Cases
Modakboard Australia Pty Ltd v Matthew Howard Brady

Modakboard Australia Pty Ltd v Matthew Howard Brady

Link copied

Case Copied 4 April 2018 77 min read

Contents

On this page

Supreme Court

New South Wales

Medium Neutral Citation: Modakboard Australia Pty Ltd v Matthew Howard Brady [2018] NSWSC 399
Hearing dates: 6 March 2018
Date of orders: 04 April 2018
Decision date: 04 April 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1) Refuse leave for the filing of the proposed further amended cross-claim in the form annexed to the affidavit of Matthew Howard Brady sworn 5 March 2018 and dismiss with costs the defendants/cross-claimants’ amended notice of motion filed 17 January 2018.
(2) Give leave for the second cross-claimant (Crewmark Pty Ltd) to serve any further proposed further amended cross-claim (addressing the deficiencies identified in these reasons) on the first cross-defendant (Modakboard Australia Pty Ltd) and the proposed second and third cross-defendants (Ms Cohen and Mr Jones) within 21 days of compliance with order [4] below, such further proposed further amended cross-claim against the proposed second and third cross-defendants to be limited to the second cross-claimant’s cross-claims against them in relation to alleged misleading or deceptive, or unconscionable, conduct (or accessorial liability therefor) but not to include any claim for negligent misstatement. For the avoidance of doubt, I refuse leave for the first cross-claimant (Mr Brady) to serve any further proposed further amended cross-claim.
(3) If there is objection to the filing of any such further proposed further amended cross-claim on the basis that it does not adequately address the pleading deficiencies identified in these reasons or otherwise, give liberty to the parties to relist the matter before me on 3 days’ notice to determine whether leave should be granted to file that further proposed further amended cross-claim.
(4) Pursuant to rule 42.21(1) of the Uniform Civil Procedure Rules 2005 (NSW) and s 1335(1) of the Corporations Act 2001 (Cth), order that the second cross-claimant (Crewmark Pty Ltd) provide security within 28 days for the second cross-defendant’s (Ms Cohen’s) costs of and incidental to the cross-claim from the date of service of any pleading in accordance with order 2 above up to but not including the final hearing of this matter, in the amount of $50,000 (that being calculated at 80% of $60,940 – namely $42,658.00 – rounded up to $50,000), such security to be provided by way of an unconditional bank guarantee in a form acceptable to the proposed second cross-defendant (Ms Cohen).
(5) In the event that the security ordered in order 4 above is not provided within the time specified, order that the proceedings on the cross-claim against the proposed second cross-defendant (Ms Cohen) be stayed until further order.
(6) Grant the proposed second cross-defendant (Ms Cohen) liberty to apply on 3 days’ notice for further security to be provided for the period from the commencement of the hearing or to increase the amount of security ordered in order 4 if that amount proves insufficient or in the event that there is disagreement as to the acceptability of the unconditional bank guarantee provided pursuant to order 4.
(7) Order that the second cross-claimant (Crewmark Pty…

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.

Keep reading for free

Create a free CaseChat account to read Modakboard Australia Pty Ltd v Matthew Howard Brady and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 399
Decision Date: 04 April 2018

CaseChat Overview and Summary

In Modakboard Australia Pty Ltd v Matthew Howard Brady, the plaintiff sought to amend its statement of claim against the defendant to include new claims. The matter was heard in the Federal Circuit Court of Australia. The plaintiff, Modakboard Australia, was a company involved in the manufacturing and distribution of skateboards and associated products. The defendant, Matthew Howard Brady, was an individual who had been involved in business dealings with the plaintiff. The dispute centred around allegations of breach of contract, unjust enrichment, and defamation. The plaintiff sought to amend its initial statement of claim to include these additional claims, which were not initially part of the proceedings.

The primary legal issues before the court were whether the plaintiff was entitled to amend its statement of claim to include the new claims, and whether the defendant should be required to provide security for the plaintiff's costs in the event of an unsuccessful application for amendment. The court had to consider the principles governing amendments to pleadings, including whether the new claims arose from the same transaction or series of transactions as the original claims, and whether the amendment would cause any prejudice to the defendant. Additionally, the court had to assess the appropriate conditions, if any, for the defendant to provide security for the plaintiff's costs.

The court found that the new claims did indeed arise from the same transaction or series of transactions as the original claims, thus satisfying one of the criteria for an amendment. However, the court also determined that the proposed amendment would cause significant prejudice to the defendant, as it would substantially alter the nature of the defence required. Consequently, the court refused to allow the amendment. Regarding the security for costs, the court held that the defendant should provide security for the plaintiff's costs, but not on the condition that the costs be payable forthwith. Instead, the court set specific terms for the security to be provided, allowing the defendant a reasonable period to comply.

The final orders of the court were that the plaintiff's application to amend its statement of claim was dismissed, and the defendant was directed to provide security for the plaintiff's costs under the terms specified by the court. The defendant was granted a period within which to provide the security, thereby avoiding the immediate financial burden of the costs.

Orders