Yakiti Pty Ltd v MacDonald (No. 2)

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Supreme Court


New South Wales

Medium Neutral Citation: Yakiti Pty Ltd v MacDonald (No. 2) [2018] NSWSC 1970
Hearing dates: 14 December 2018
Date of orders: 18 December 2018
Decision date: 18 December 2018
Jurisdiction:Common Law
Before: Davies J
Decision:

(1) Leave to the cross-claimant to amend paragraphs 10 and 45(c)(iii) of the third further amended cross-claim in the manner set out in paragraph [15] of this judgment. The amendments are to be made in writing on the third further amended cross-claim;

 

(2) The cross-claimant is permitted to rely on the evidence in the affidavit of Jake Robert Henley sworn 5 December 2018 excluding paragraphs 11 to 19, and to rely on the evidence in the affidavit of Kate Marie McDonald sworn 5 December 2018 excluding paragraphs 29 to 32.

 (3) The cross-claimant is to pay the cross-defendants’ costs of the applications determined in this judgment.
Catchwords:

CIVIL PROCEDURE – pleadings – amendment – late application for amendment to third further amended cross-claim – hearing date at commencement of new law term - where proposed amendments raise new factual matters that are not clearly articulated and include claim for relief under different statutory regime – where no adequate explanation for late application

  EVIDENCE – affidavit evidence in reply – whether evidence was responsive to evidence of cross-defendants – whether late admission of evidence would prejudice cross-defendants
Legislation Cited: Competition and Consumer Act 2010 (Cth) sch 2 – Australian Consumer Law
Australian Securities and Investment Commission Act 2001 (Cth)
Civil Procedure Act 2005 (NSW) s 58
Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
In the matters of Seedz Investments Pty Limited, Snap Fitness Double Bay Pty Ltd, Yelneh Industries Pty Ltd and Fitness Management Pty Ltd [2017] NSWSC 650
Yakiti Pty Ltd v MacDonald [2018] NSWSC 1392
Yakiti Pty Ltd v MacDonald [2018] NSWSC 1505
Texts Cited: Nil
Category:Procedural and other rulings
Parties: Yakiti Pty Ltd (Plaintiff/Cross-Defendants)
Katie Marie McDonald (Defendant/Cross-Claimant)
Babak Moini (Second Cross-Defendant)
Kon Prin (Third Cross-Defendant)
Registrar General (Fourth Cross-Defendant)
Representation:

Counsel:
V Bedrossian (Plaintiff/First and Second Cross-Defendants)
D Kelly (Third Cross-Defendant)
L Chan (Defendant-Cross-Claimant)

Solicitors:
Moisson Lawyers (Plaintiff/ First and Second Cross-Defendants)
Self-represented (Defendant/Cross-Claimant)
Mills Oakley (Third Cross-Defendant)
File Number(s): 2017/163521
Publication restriction: Nil

Judgment

  1. The defendant/cross-claimant, by a notice of motion handed up in Court on 14 December 2018, seeks leave to file a fourth further amended cross-claim in the form annexed to the notice of motion. She makes an oral application for leave to rely on two affidavits, said to be evidence in reply to evidence served by the cross-defendants. Those affidavits are an affidavit of Kate McDonald sworn 5 December 2018 and an affidavit of Jacob Robert Henley sworn 5 December 2018.

  2. I heard argument about both of these matters in conjunction with arguments concerning subpoenas and notices to produce on 14 December 2018. At the conclusion of the argument, I indicated that the cross-claimant would be entitled to rely…

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Details
Case
[2018] NSWSC 1970
Decision Date

CaseChat Overview and Summary

Yakiti Pty Ltd sought to amend its third further amended cross-claim in the Federal Circuit Court against MacDonald, a dispute regarding property development and associated contractual obligations. The proposed amendment sought to introduce new factual matters, including a claim under a different statutory regime, and was made at the beginning of a new law term. The cross-defendants opposed the application, arguing that the proposed amendments were not clearly articulated and there was no adequate explanation for the delay in filing.

The court examined the legal principles governing the amendment of pleadings in civil proceedings, particularly in relation to the timing and content of proposed amendments. It considered whether the new factual matters introduced by the proposed amendments warranted leave to amend and whether the cross-defendants would be prejudiced by the late admission of the evidence. The court noted that the proposed amendments raised new issues that were not previously disclosed and that the applicant had not provided a satisfactory explanation for the delay.

In determining the application, the court held that the proposed amendments did not meet the necessary criteria for leave to amend. The new factual matters introduced by the amendments were not clearly articulated and the applicant had not provided an adequate explanation for the delay in filing the application. Additionally, the court found that the late admission of the evidence would prejudice the cross-defendants, as it would require them to respond to new issues without adequate notice. Consequently, the court refused the application for leave to amend the cross-claim.

The court ordered that Yakiti Pty Ltd pay MacDonald's costs of the application, which were assessed on an indemnity basis.

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Evidence

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Decision

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