Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Genworth Financial Mortgage Insurance Pty Limited v Peter Clisdell Pty Limited [2009] FCA 1014
PRACTICE AND PROCEDURE – application for leave to amend defence – where application made on the first day of a six day hearing – where the granting of the amendment would result in delay of the proceedings – whether consequential delay outweighed by the importance of the amendment – whether leave should be granted to amend defence. Held: application for leave to amend defence granted. Civil Liability Act 2002 (NSW), ss 34, 35 Trade Practices Act 1974 (Cth), ss 87CA-87CH Court Procedure Rules 2006 (ACT), r 21 Federal Court Rules, Order 13, r 2 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
GENWORTH FINANCIAL MORTGAGE INSURANCE PTY LIMITED (ACN 106 974 305) v PETER CLISDELL PTY LIMITED, MARK GERARD CASEMORE and BRUCE CLISDELL; MACQUARIE UNDERWRITING PTY LIMITED (ACN 008 497 318)
NSD 635 of 2008
JAGOT J
7 SEPTEMBER 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
General Division NSD 635 of 2008
BETWEEN: GENWORTH FINANCIAL MORTGAGE INSURANCE PTY LIMITED (ACN 106 974 305)
Applicant
AND: PETER CLISDELL PTY LIMITED
First Respondent / First Cross-Claimant
MARK GERARD CASEMORE
Second Respondent / Second Cross-Claimant
BRUCE CLISDELL
Third Respondent / Third Cross-Claimant
MACQUARIE UNDERWRITING PTY LIMITED (ACN 008 497 318)
Cross-Defendant
JUDGE: JAGOT J
DATE OF ORDER: 7 SEPTEMBER 2009
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The respondents be granted to leave to amend their defence in accordance with the draft amended defence which is annexure "Y" to the affidavit of Richard Andrew Oldfield dated 4 September 2009. 2. The hearing fixed for 7-11 and 17 September 2009 be vacated. 3. The respondents are to pay the cross defendant's costs thrown away by reason of the vacation of the hearing fixed for 7-11 and 17 September 2009 as agreed or taxed and thereafter to be payable forthwith. 4. The respondents are to file and serve any evidence in respect of the costs between the applicant and the respondents concerning the vacation of the hearing date by 12.00 pm on 11 September 2009. 5. The applicant is to file and serve any evidence in reply by 12.00 pm on 16 September 2009. 6. The hearing of the question of costs between the applicant and the respondents be listed at 10.15 am on 17 September 2009. 7. The proceedings be listed for directions on 17 September 2009 at 2.15 pm. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.
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