Toohey v Toohey [2020] NSWSC 1854

Supreme Court New South Wales

Medium Neutral Citation: Toohey v Toohey [2020] NSWSC 1854 Hearing dates: 16 December 2020 Date of orders: 16 December 2020 Decision date: 16 December 2020 Jurisdiction: Equity Before: Parker J Decision: See [47] Catchwords: CIVIL PROCEDURE – pleadings – amendment – application to amend defence after proceedings fixed for hearing – partnership proceedings – claim for indemnity for alleged partnership expenses incurred by one partner – belated limitation defence – amendment permitted Legislation Cited: Conveyancing Act 1919 (NSW), s 66G Limitation Act 1969 (NSW), ss 14, 15 Partnership Act 1892 (NSW), ss 24, 28, 39 Uniform Civil Procedure Rules 2005 (NSW), r 12.6 Cases Cited: Adams v Bank of New South Wales [1984] 2 NSWLR 505 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Elzamtar v Bangladesh Islamic Centre of NSW Inc [2020] NSWSC 116 Category: Procedural and other rulings Parties: John Warwick Toohey (Applicant) Maxwell Harry Toohey (Respondent) Representation: Counsel: P Lane (Applicant) B Lloyd (Respondent)

Solicitors: Rickards Whiteley Lawyers (Applicant) Brander Smith McKnight Lawyers (Respondent) File Number(s): 2019/160425

Judgment – EX TEMPORE Revised from transcript; issued 17 December 2020 1. Before the Court is a contested amendment application. The cross‑defendant seeks leave to amend his defence to the cross‑claim, so as to raise a limitation defence. The application is opposed by the cross‑claimant. 2. The parties to the proceedings are brothers. The plaintiff and cross‑defendant is John Warwick Toohey. The defendant and cross‑claimant is Maxwell Harry ("Max") Toohey. For convenience and without any disrespect, I will refer to them by their first names.