HASTIE v NIXON [1990] NSWCA 88

HASTIE v NIXON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE JA 21 December 1990, 21 December 1990

[1990] NSWCA 88

Clarke JA The first application before me is an application by Mr Hastie, the claimant, to amend the summons which he has filed, by seeking an additional order, that is, that the decision of Judge Downs in matter No 3556/89 made on 8 June 1990 be set aside upon the grounds that the judgment entered by his Honour could not stand in the light of the terms of the statement of claim, and that his Honour in any event failed to give reasons.

Although, having regard to all the evidentiary material that has been put before me, I do not think there is greate deal of merit in the claim which is now sought to be made, I think it appropriate to grant leave to the claimant to amend the summons so that it reads in the terms I have indicated.

I direct, in accordance with this grant of leave, the claimant to file and serve an amended summons containing the additional material by 4 February 1991.

The substantive application before me is for a stay of proceedings. I should say at the outset that the case has been in the past a hopeless muddle. It would appear, from the claimant's sworn evidence, that he has a reasonable defence to the claim mounted by the opponent to the effect that he was an employee of a person who was named as the first defendant in District Court proceedings in which the orders have been made, leading to the case coming before this Court. His claim in that regard is supported by the terms of par 3 of the statement of claim which, in broad terms, states that he contracted with the opponent with the authority of the first defendant and/or that he was allowed and permitted by the first defendant to contract on her behalf as her duly authorised servant or agent.