Perpetual Trustee Company Ltd v Markos

In Perpetual Trustee Company Ltd v Markos, the plaintiff sought an amendment to its statement of claim, which was filed late and would, if allowed, jeopardise the timely hearing of the case. The proposed amendment aimed to raise an arguable complete defence, which would have been available to the principal defendant had they been joined in the proceedings. The defendants, Markos and his surety, opposed the amendment on the grounds that it was untimely and would prejudice their ability to prepare and respond adequately.

The court had to determine whether the plaintiff's late amendment could be allowed under the circumstances, and if the principal defendant could be joined to take advantage of a set-off or counterclaim defence. The court considered the established principles of procedural fairness and the importance of ensuring that cases are heard and determined within a reasonable time. The court also had to examine the potential for a cross-claim to be brought by the surety against the principal defendant, as a preferable course of action.

The court found that the proposed amendment, while potentially arguable, was not suitable for consideration at that stage of the proceedings as it would significantly delay the case. The court emphasised the need for parties to manage their litigation strategies effectively and avoid last-minute amendments that could prejudice the other side. Regarding the joinder of the principal defendant, the court held that it would not be appropriate to allow the principal defendant to be joined at that stage, as it would likely cause further delays and complications. Instead, the court suggested that the surety should pursue a cross-claim against the principal defendant if they wished to assert a set-off or counterclaim defence.

Accordingly, the court dismissed the application for leave to amend the statement of claim and refused to join the principal defendant as a party to the proceedings. The case was to proceed as originally filed, with the surety defendant continuing to defend the claim on their own behalf.