Rozenblit v Vainer (No 3)

The case of Rozenblit v Vainer (No 3) involved the plaintiff, Rozenblit, seeking leave to amend their statement of claim against the defendant, Vainer. This was the third application for leave to amend and arose in the Supreme Court of Victoria. The primary dispute centred on the procedural aspects of allowing the amendment, particularly in light of the significant delays, lack of explanation, and potential for additional costs and delays in the trial process.

The court was required to consider several legal issues, including the discretion to grant leave to amend under the Supreme Court (General Civil Procedure) Rules 2015, the factors relevant to the delay and explanation provided, and the potential impact on costs and trial proceedings. The court also needed to evaluate the implications of previous costs orders that remained unpaid and the broader discretion to stay or dismiss proceedings under rule 63.03(3).

The court found that the plaintiff had now cured the pleading defects identified in earlier applications. Despite the significant delay and initial absence of explanation, the eventual justification provided was deemed sufficient. The court also considered the potential for further costs and delays if the amendment was allowed, as well as the failure to pay previous costs orders. Applying the principles from Aon Risk Services Australia Ltd v Australian National University and Gao v Zhang, the court concluded that leave to amend should be granted on the condition that the plaintiff paid the outstanding costs orders. Additionally, the court ordered a stay of the proceedings due to the non-payment of costs, in accordance with rule 63.03(3).

The final orders included granting leave to amend the statement of claim upon payment of the outstanding costs and ordering a stay of the proceedings until the costs were paid.