Permanent Custodians Ltd v King

The case before the court was between Permanent Custodians Limited and King. The dispute involved a claim by King against Permanent Custodians Limited for negligence. King alleged that the defendant's negligence caused him to suffer significant personal injuries. The case was heard in the Supreme Court of New South Wales. The Fourth Cross Defendant sought leave to amend their defence, arguing that the court should consider the issue of proportionate liability under Part 4 of the Civil Liability Act. This argument was based on the premise that the plaintiff was a concurrent wrongdoer and that the defendant's liability should be apportioned accordingly.

The court was required to decide whether the Fourth Cross Defendant's proposed amendment was appropriate and whether it was permissible to raise the issue of proportionate liability for the first time in the defence. The court also needed to determine whether the application for leave to amend was made within a reasonable time and if the proposed amendment was likely to succeed on its merits. Furthermore, the court needed to consider whether it should depart from the general rule of costs following the conduct of the parties involved.

The court found that the Fourth Cross Defendant's proposed amendment was not appropriate. It was held that the provisions of Part 4 of the Civil Liability Act must be pleaded by the defendant, and since this was not done in the initial defence, the court was not willing to allow a late amendment. The court reasoned that to grant leave to amend the defence at this stage would cause significant prejudice to the plaintiff and would disrupt the orderly conduct of the trial. The court further held that the issue of proportionate liability could not be considered because the defendant had failed to plead reliance on these provisions in their defence. The court also found that the application for leave to amend was not made within a reasonable time, and the proposed amendment was unlikely to succeed on its merits. Finally, the court considered the conduct of the parties and made orders regarding costs, departing from the general rule.

The court refused the Fourth Cross Defendant leave to amend its defence and dismissed the application. The court ordered that the Fourth Cross Defendant pay the plaintiff's costs of the application. The court also ordered that the plaintiff be paid costs of the proceeding on an indemnity basis, due to the conduct of the Fourth Cross Defendant.