Yakiti Pty Ltd v MacDonald (No. 2)

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…