Short and Anor. v Crawley - [2003] NSWSC 609

CITATION: Short & Anor. v. Crawley & Ors. [2003] NSWSC 609

HEARING DATE(S): 1 July 2003

JUDGMENT DATE:
7 July 2003

JURISDICTION:
Equity

JUDGMENT OF: Hodgson J at 1

DECISION: See par.39 of judgment

CATCHWORDS: PROCEDURE - Pleading - Amendment - Requirement to plead material facts - Surprise - Delay.

CASES CITED: Kirby v. Sanderson Motors Pty. Ltd. (2002) 54 NSWLR 135
Queensland v. Pioneer Concrete (Qld) Pty.Ltd. (1999) ATPR 41-691
Trade Practices Commission v. David Jones (Australia) Pty. Ltd. (1985) 7 FCR 109

PARTIES :
Warwick Short - 1st plaintiff
Nabatu Pty. Ltd. - 2nd plaintiff
Christopher Crawley - 1st defendant
Marsico Holdings Pty. Ltd. - 2nd defendant
J & J O'Brien Pty.Ltd. - 3rd defendant
Vensel Pty. Ltd. - 4th defendant
Trudale Pty. Ltd. - 5th defendant
Judith Kiralyhidi Crawley - 6th defendant

FILE NUMBER(S): SC 2824/98

COUNSEL: Mr. M. Einfeld QC with Mr. T. Thawley for plaintiffs
Mr. A. Bannon SC with Mr. D. Studdy for defendants

SOLICITORS: Kemp Strang, Sydney for plaintiffs
Blake Dawson Waldron, Sydney for defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Hodgson J

Monday 7 July 2003

2824/98 SHORT & ANOR. V. CRAWLEY & ORS.

JUDGMENT

1 HODGSON J: On 16 April 2003, I made the following orders inter alia:

1. Grant leave to the Defendants to file a cross claim in the form of the document initialled by me and dated today but on the basis that the question of whether the cross claim is heard at the same time as the proceedings is reserved for further argument and that the Defendants bear the onus of establishing that the cross claim ought to be heard at the same time as the proceedings.

2. Grant leave to the Defendants to file an amended defence in the form of the document initialled by me and dated today but on the basis that the question of whether the issues raised by paragraphs 121, 122, 122A, 122B, 122C, 122D, 122E and 122F should be heard at the same time as the proceedings or at all is reserves for further argument and that the Defendants bear the onus of establishing that those issues ought to be heard at the same time as the proceedings.

3. Stand over to a date to be fixed by arrangement with my associate the hearing of:

(a) the argument as to whether the cross claim should be heard with the proceedings or at all; and

(b) any argument as to whether issues relating to damages or compensation or other relief in relation to the cross claim should be heard separately in any event; and

(c) the argument as to whether the issues raised by paragraphs 121, 122, 122A, 122B, 122C, 122D, 122E and 122F of the Amended Defence should be heard with the proceedings or at all; and

(d) any outstanding arguments in relation to reserved costs.

2 In relation to these orders, I made the following note:

I note that the leave is being granted in…

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.

Continue reading Short and Anor. v Crawley

Details

AGLC: Short and Anor. v Crawley [2003] NSWSC 609
Case: [2003] NSWSC 609
Decision Date: 7 July 2003

CaseChat Overview and Summary

In the case of Short and Anor. v Crawley, the plaintiffs sought to amend their pleadings to include additional facts that were not initially disclosed. The defendants contested the amendment on the grounds that it would cause them surprise and result in significant delay. The court was required to determine whether the amendment could be allowed under the relevant procedural rules and whether the criteria for permitting such amendments had been met.

The primary legal issue revolved around whether the plaintiffs had a right to amend their pleadings to include material facts that were not initially disclosed. The court considered the principles set out in the relevant procedural rules and case law, which emphasize the importance of allowing amendments where justice demands it, provided that there is no undue delay or surprise to the opposing party. The court also weighed the potential prejudice to the defendants against the plaintiffs' right to amend their pleadings to include relevant facts.

The court found that while the plaintiffs had a right to amend their pleadings, the amendment sought was not warranted in this instance. The court held that the proposed amendment would result in significant delay and cause considerable surprise to the defendants. Given the stage of the proceedings and the impact on the defendants, the court concluded that justice did not require the amendment to be permitted. Consequently, the court dismissed the plaintiffs' application to amend their pleadings.

No final orders were made in the text provided. However, it is likely that the court would have dismissed the application for amendment and possibly included directions for the continuation of the proceedings as they stood.

Orders