Dimarti v Westpac Banking Corporation [2020] NSWSC 1342

Supreme Court New South Wales

Medium Neutral Citation: Dimarti v Westpac Banking Corporation [2020] NSWSC 1342 Hearing dates: 26 August 2020 & 3 September 2020 Date of orders: 2 October 2020 Decision date: 02 October 2020 Jurisdiction: Common Law Before: Rothman J Decision: The Court makes the following orders: (1) Pursuant to the provisions of s 64(1)(b) and s 65(2)(c) of the Civil Procedure Act, the plaintiff has leave to amend the Statement of Claim by including a claim based on an allegation that the fraud was reported on 4 October 2011; (2) The plaintiff shall file and serve within two weeks of the date of this judgment an Amended Statement of Claim in a form that is appropriate and which, to the extent that there is contained therein a claim for personal injury, is accompanied by a statement and documentation referred to in r 15.12 of the UCPR; (3) The plaintiff shall pay the defendant's costs of and incidental to the proceedings thrown away as a result of any amendments to the Statement of Claim on an indemnity basis; (4) Pursuant to the terms of s 61 of the Civil Procedure Act, the Court directs that no amended pleading filed by the plaintiff later than the time ordered above may be filed or served and, subject to any subsequent order of the Court, no further attempt at an appropriate pleading may be agitated. Catchwords: CIVIL PROCEDURE – Pleadings – Fraud – Amendment – Form and Content of Pleadings – Non-compliance with Rules relating to personal injury – lack of specificity in fraud allegation – leave granted to file amendment over objection. LIMITATION OF ACTIONS – Fraud and personal injury – amendment to allege different cause of action – same or similar facts – operation of Civil Procedure Act – leave granted. Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C Civil Procedure Act 2005 (NSW), ss 56, 64, 65(2) Limitation Act 1969 (NSW), s 14 Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4, 15.12 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Barnes v Addy (1874) LR 9 Ch App 344 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Farah Custodians Pty Limited v Commissioner of Taxation (No 2) [2019] FCA 1076 Gerace v Auzhair Supplies Pty Ltd (2014) 87 NSWLR 435; [2014] NSWCA 181 KTC v David (No 1) [2019] NSWSC 281 Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130 Category: Procedural and other rulings Parties: Carmelo Dimarti (Plaintiff/Applicant) Westpac Banking Corporation (Defendant/Respondent) Representation: Counsel: N Obrart (Plaintiff/Applicant) J Entwisle (Defendant/Respondent)