Young v Hones (No 2)

Case [2014] NSWCA 338


Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Young v Hones (No 2) [2014] NSWCA 338
Hearing dates:2 May 2014
Decision date: 01 October 2014
Before: Bathurst CJ; Ward JA; Emmett JA
Decision:

Orders made on 2 May 2014:

1.Application for leave to appeal from refusal to adjourn hearing on 23 August 2013 refused.

2.Application for leave to appeal from refusal to allow further amended statement of claim to be filed refused.

3.Leave given for Notice of Contention to be filed in Court on behalf of 4th and 5th respondents.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PROCEDURE - appeal - application for leave to appeal against interlocutory decision - whether primary judge erred in refusing application to further amend statement of claim - whether primary judge erred in refusing oral application for adjournment during reply submissions to put on evidence explaining lateness of application to further amend the statement of claim
Legislation Cited: Civil Procedure Act 2005 (NSW)
Encroachment of Buildings Act 1992 (NSW)
Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Banque Commerciale SA (En Liquidation) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch 250
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Frank Jasper Pty Ltd v Deloitte Touche Tomatsu (A Firm) [2006] WASC 24
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
House v R [1936] HCA 40; (1936) 55 CLR 499
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
John Holland Pty Ltd v Miami Gold (WA) Pty Ltd [2006] WASC 141
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Warragamba Winery Pty Ltd v State of NSW [2010] NSWCA 174
Young v Hones [2014] NSWCA 337
Young v Hones [2013] NSWSC 580
Category:Principal judgment
Parties:

Margo Young (Applicant/Appellant)

Brian Keith Hones (First Respondent)
Jason Hones (Second Respondent)
Ian Hemmings (Third Respondent)
Hughes Trueman Pty Ltd (Fourth Respondent)
Stephen John Perrens (Fifth Respondent)
Representation: Counsel:
RD Newell (Applicant/Appellant)
JC Kelly SC with MJ Darke (First and Second Respondents)
TD Miller SC with Ms PA Horvath…

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AGLC
Young v Hones (No 2) [2014] NSWCA 338
Case
[2014] NSWCA 338
Decision Date

CaseChat Overview and Summary

In *Young v Hones (No 2)*, the New South Wales Court of Appeal considered an application for leave to appeal against an interlocutory decision of the primary judge. The dispute concerned the primary judge's refusal to grant an adjournment during reply submissions to allow the plaintiffs to adduce evidence explaining the lateness of their application to further amend their statement of claim, and the primary judge's refusal to permit that further amendment.

The Court of Appeal was required to determine two principal legal issues. Firstly, whether the primary judge erred in refusing the oral application for an adjournment during reply submissions. Secondly, whether the primary judge erred in refusing the application to further amend the statement of claim.

The Court of Appeal refused both applications for leave to appeal. In relation to the refusal to adjourn, the Court found no error on the part of the primary judge. Regarding the refusal to allow the further amendment of the statement of claim, the Court also found no error, implicitly applying principles that govern the amendment of pleadings, particularly concerning the stage of proceedings and potential prejudice to the opposing party. Leave was granted for the fourth and fifth respondents to file a Notice of Contention.

Orders

Orders of the court

Orders made on 2 May 2014:

1.Application for leave to appeal from refusal to adjourn hearing on 23 August 2013 refused.

2.Application for leave to appeal from refusal to allow further amended statement of claim to be filed refused.

3.Leave given for Notice of Contention to be filed in Court on behalf of 4th and 5th respondents.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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