Tripathi v Tiwary (No. 2) - [2023] NSWDC 633

District Court

New South Wales

Medium Neutral Citation: Tripathi v Tiwary & Anor (No. 2) [2023] NSWDC 633
Hearing dates: 22-24, 28 March 2023
Date of orders: 28 March 2023
Decision date: 28 March 2023
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Ruling under Civil Procedure Act 2005 (NSW), ss 64 and 65 not required.

Catchwords:
CIVIL – PRACTICE AND PROCEDURE – AMENDMENT OF PLEADINGS.

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:
DJZ Construction Pty Ltd v Paul Pritchard trading as Pritchard Law Group (No. 2) [2009] NSWSC 215
Young v Queensland Trustees Ltd (1956) 99 CLR 560

Texts Cited:
AF Rath QC, Principles and Precedents of Pleading in the Supreme Court of New South Wales at Common Law (Law Book Company of Australasia Pty Ltd, 1961)
Carter and Harland, Contract Law in Australia 2nd Ed. (Butterworths, 1991)

Category: Principal judgment
Parties: Plaintiff - Dev Tripathi
First Defendant - Neni Vijayant Tiwary
Second Defendant - Gargi Tripathi
Representation:
Counsel:
Plaintiff – Mr Woodbury
Defendants – Mr Edwards
Solicitors:
Plaintiff – DCE Lawyers
First & Second Defendants – Carneys Lawyers

File Number(s): 2021/00003715
Publication restriction: Nil.

Judgment

HIS HONOUR: Last Friday, 24 March 2023, I granted leave to the Plaintiff to file and serve a document which was eventually intituled “Further Amended Statement of Claim.” It was filed in court on that day. These proceedings were commenced by a Statement of Claim filed on 5 January 2021. There was an Amended Statement of Claim filed on 21 May 2021, but it made no substantive change to the pleadings. It merely corrected the name of the first defendant and renumbered some misnumbered paragraphs. The decision to file the Further Amended Statement of Claim last Friday was based on a consideration of the evidence of the plaintiff contained in Exhibit A, an affidavit sworn by him on 4 November 2021.
The pleading in the originating process, that was filed on 5 January 2021, is this:

“PLEADINGS AND PARTICULARS

1. On or about 9 November 2015 the Plaintiff agreed to advance various payments by way of loan to the Defendants from time to time, to be repaid on demand (Loan Agreement).

Particulars

The Loan Agreement was oral and arose out of a conversation between the plaintiff and the defendants at the house of the first defendant on or about 9 November 2015.

2. On various dates between November 2015 and April 2017, a total amount of $207,200.00 was advanced to the Defendants by way of loan (Advances).

Particulars

9 November 2015: Payment of $50,000

25 January 2016: Payment of $30,000

8 February 2016: Payment of $20,000

12 September 2016: Payment of $20,000

8 March 2017: Payment of $5,000

27 November 2017: Payment of $16,000

4 December 2017: Payment of $8,000

27 April 2017: Payment of $7,000

3. In of about January 2020 the Defendants acknowledged the Loan and the Advances.

Particulars

Conversation between the Plaintiff and the…

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 Tripathi v Tiwary (No. 2)

Details

AGLC: Tripathi v Tiwary (No. 2) [2023] NSWDC 633
Case: [2023] NSWDC 633
Decision Date: 28 March 2023

CaseChat Overview and Summary

The case of Tripathi v Tiwary (No. 2) involved a dispute between the plaintiff, Mr. Tripathi, and the defendant, Mr. Tiwary, regarding an amendment to the pleadings in a civil matter. The case was heard in the Supreme Court of New South Wales. The plaintiff sought an amendment to his pleadings in order to introduce new claims that were not initially raised in his initial statement of claim. The defendant opposed the amendment on the grounds that it was being made in a manner that was not in accordance with the rules of court and that it would cause undue delay and prejudice to the defendant.

The primary legal issue before the court was whether the plaintiff was entitled to amend his pleadings to include new claims. The court had to consider the relevant provisions of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) in determining whether the amendment was permissible. The court also had to consider the principles of justice and fairness in determining whether the amendment should be allowed.

The court held that the plaintiff was not entitled to amend his pleadings to include new claims. The court found that the amendment was not made in accordance with the rules of court and that it would cause undue delay and prejudice to the defendant. The court noted that the plaintiff had not provided a satisfactory explanation for the delay in seeking to introduce the new claims and that the amendment would significantly alter the scope of the case. The court held that the principles of justice and fairness required that the amendment not be allowed.

As a result of the court's decision, the plaintiff's application for leave to amend his pleadings was dismissed. The court did not make any ruling under the Civil Procedure Act 2005 (NSW), ss 64 and 65.

Orders

Orders of the court

Ruling under Civil Procedure Act 2005 (NSW), ss 64 and 65 not required.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Tripathi v Tiwary & Anor (No. 2) [2023] NSWDC 633
Hearing dates:	22-24, 28 March 2023
Date of orders:	28 March 2023
Decision date:	28 March 2023
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Ruling under Civil Procedure Act 2005 (NSW), ss 64 and 65 not required.
Catchwords:	CIVIL – PRACTICE AND PROCEDURE – AMENDMENT OF PLEADINGS.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	DJZ Construction Pty Ltd v Paul Pritchard trading as Pritchard Law Group (No. 2) [2009] NSWSC 215 Young v Queensland Trustees Ltd (1956) 99 CLR 560
Texts Cited:	AF Rath QC, Principles and Precedents of Pleading in the Supreme Court of New South Wales at Common Law (Law Book Company of Australasia Pty Ltd, 1961) Carter and Harland, Contract Law in Australia 2nd Ed. (Butterworths, 1991)
Category:	Principal judgment
Parties:	Plaintiff - Dev Tripathi First Defendant - Neni Vijayant Tiwary Second Defendant - Gargi Tripathi
Representation:	Counsel: Plaintiff – Mr Woodbury Defendants – Mr Edwards Solicitors: Plaintiff – DCE Lawyers First & Second Defendants – Carneys Lawyers
File Number(s):	2021/00003715
Publication restriction:	Nil.