J & E Vella Pty Ltd v Hobson [2020] NSWCA 188

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: J & E Vella Pty Ltd v Hobson [2020] NSWCA 188 Hearing dates: 23 June 2020 Decision date: 24 August 2020 Before: Bell P at [1]; Basten JA at [1]; White JA at [1] Decision: 1. Grant leave to the applicants to appeal from the orders of 11 November 2019. 2. Order the applicants file a notice of appeal in the form of the draft notice of appeal at Tab 8 of the White Book. 3. Allow the appeal in part. 4. Set aside the order of the primary judge of 11 November 2019 granting leave to the plaintiffs to file an amended statement of claim in a form consistent with the judgment of the primary judge of that date. 5. In lieu thereof, order that leave be granted to the appellants to file an amended statement of claim in a form incorporating the amendments in paras 40A-48 of the statement of claim in annexure A to the interlocutory process filed on 30 October 2019. 6. Order that the respondents pay the appellants' costs of the appeal. 7. Set aside the orders for costs of 11 November 2019 of the primary judge in respect of the costs of the interlocutory process of 30 October 2019. 8. In lieu thereof order that the costs of the interlocutory process filed 30 October 2019 be the appellants' costs in the proceedings. Catchwords: CIVIL PROCEDURE – Pleadings – Application for leave to appeal from refusal of leave to amend statement of claim – Whether primary judge failed to consider the prejudice to the applicants – Where separate proceedings would be antithetical to the just, quick and cheap determination of the real issues between the parties Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64 Partnership Act 1892 (NSW), Pt 2 Div 3, s 32(c) Supreme Court Act 1970 (NSW), s 63 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Beach Petroleum NL v Kennedy & Ors (1999) 48 NSWLR 1 Crawley v Short [2009] NSWCA 410; (2009) 262 ALR 654 House v The King (1936) 55 CLR 499; [1936] HCA 40 In the matter of Beverage Freight Services Pty Ltd [2019] NSWSC 1684 Macquarie Bank Limited v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 O'Halloran v RT Thomas & Family Pty Ltd (1998) 45 NSWLR 262 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Texts Cited: J D Heydon, Heydon on Contract (Lawbook Co. 2019) Category: Principal judgment Parties: J & E Vella Pty Ltd (First Appellant) Joseph Gregory John Vella (Second Appellant) Brian Charles Hobson (First Respondent) Hynadam Pty Ltd ACN 002 478 828 (Second Respondent) Brett Soper (Third Respondent) Mechita Pty Ltd ACN 063 519 915 (Fourth Respondent) Beverage Freight Services Pty Limited ACN 097 919 769 (Fifth Respondent) Beverage Distribution Australia Pty Limited ACN 160 140 287 (Sixth Respondent) Representation: Counsel: G R Sirtes SC with A Fernon (Appellants) M Ashhurst SC with M Dolenec (Respondent)