Slater v Guo - [2023] NSWSC 1264

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Slater v Guo [2023] NSWSC 1264
Hearing dates: 24 October 2023
Date of orders: 24 October 2023
Decision date: 25 October 2023
Jurisdiction: Equity - Real Property List
Before: Richmond J
Decision:
Leave to amend refused.

Catchwords:
PRACTICE AND PROCEDURE — pleadings — amendment — application by defendant for leave to amend defence and cross-claim — leave refused

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law
Conveyancing Act 1919 (NSW)

Cases Cited:
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Kelly v Mina [2014] NSWCA 9

Category: Procedural rulings
Parties: Samini Dwi Astuti Slater (Plaintiff)
Aihua Guo (Defendant)
MGL Lawyers (Proposed 4th Cross Defendant)
Representation:
Counsel:
P Folino-Gallo (Plaintiff)
KP Tang (Defendant)
A Smorchevsky (Proposed 4th Cross Defendant)
Solicitors:
Clear Lawyers (Plaintiff)
Wood Marshall Williams (Defendant)
Moray & Agnew (Proposed 4th Cross Defendant)

File Number(s): 2022/25410
Publication restriction: Nil

JUDGMENT

These reasons concern the defendant’s notice of motion filed on 18 August 2023, seeking leave to file an amended defence and an amended cross-claim. At the hearing on 24 October 2023, I dismissed the motion and indicated that I would publish my reasons as soon as practicable. These are my reasons.

Background

These proceedings concern a contract for sale dated 28 October 2021 of an apartment in Forestville, Sydney (the Property) entered into between the plaintiff as vendor and the defendant as purchaser for a price of $1,402,000 (Contract). The defendant paid the deposit of $140,200 to the stakeholder under the Contract. The date for completion under the Contract was 15 December 2021 but completion did not occur and, following the issue of a notice to complete, the plaintiff terminated the Contract by a notice of termination issued to the defendant on 25 January 2022.
On 28 January 2022, the plaintiff commenced these proceedings. The relief sought is a declaration that her notice of termination was valid, and claims for the deposit, damages for her loss on the resale of the Property (less the deposit), interest and costs.
On 20 December 2022, the stakeholder under the Contract paid the deposit of $140,200 into Court.
It is not in dispute that due to the impecuniosity of the defendant, it is likely that the only amount which the plaintiff will be entitled to recover, if she is successful, is the deposit of $140,200 (plus interest earned thereon).
On the current pleadings, the defendant’s case is that she did not receive a valid notice to complete and that consequently the notice of termination was wrongfully issued, or alternatively, the plaintiff had earlier repudiated the Contract. By her current cross-claim, the defendant seeks damages for wrongful termination of the Contract.
The plaintiff filed her evidence on 1 September 2022 and the defendant filed her evidence on 14 November 2022. On 10 February 2023, the matter was set down for a…

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 Slater v Guo

Details

AGLC: Slater v Guo [2023] NSWSC 1264
Case: [2023] NSWSC 1264
Decision Date: 25 October 2023

CaseChat Overview and Summary

Slater v Guo is a case concerning a defendant's application for leave to amend a defence and cross-claim, which was refused by the court. The case was heard in the Supreme Court of New South Wales. The plaintiff, Slater, brought an action against Guo for damages for personal injuries suffered by Slater in a motor vehicle accident. Guo, the defendant, initially filed a defence denying liability and subsequently sought leave to amend the defence and file a cross-claim against a third party.

The primary legal issue before the court was whether Guo should be granted leave to amend the defence and cross-claim, given the delay in making the application and the potential prejudice to Slater if the amendment were allowed. The court considered the factors relevant to granting such leave, including the timing of the application, the merits of the proposed amendment, and the impact on Slater if the amendment were permitted.

The court found that the delay in making the application was significant and that the proposed amendment did not appear to have substantial merit. The court also considered that allowing the amendment at that stage would cause substantial prejudice to Slater, who had already incurred significant costs in preparing for the trial. Consequently, the court refused Guo's application for leave to amend the defence and cross-claim.

No further orders were made in the judgment. The case serves as a reminder of the importance of timely and well-considered pleadings and the potential consequences of delays in making applications to amend.

Orders