M J SHERRIN PTY LIMITED v CUNNEED & CO PTY LIMITED [1993] NSWCA 166

M J SHERRIN PTY LIMITED vy CUNNEED & CO PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P, MAHONEY JA and CLARKE JA 13 December 1993

[1993] NSWCA 166

PRACTICE & PROCEDURE — Court of Appeal — leave to appeal — dispute as to pleading — application for amendment of Statement of Claim — application granted by Prothonotary — reversed by the Master — restored by Judge in Common Law Division (James J) — upon further application for leave to appeal to the Court of Appeal — held: (1) It would be assumed that an appeal from the Master to a Judge required an appellate approach similar to that of the Court of Appeal in relation to an appeal from a Judge. Do Carmo v Ford Excavations Pty Limited [1981] 1 NSWLR 409 (SC) applied; (2) The Judge did not misconceive his function; (3) Nor did he overlook a relevant limitation defence; (4) Such defence could be pleaded in answer to the amendment allowed; (5) Leave to appeal, accordingly, refused.

Kirby P. This is the second time that this case has been before this Court. This time it involves a fourth level of review of the proceedings. This follows an earlier decision of this Court which heard an appeal after an earlier judgment. The Court set the judgment aside and sent the matter back for retrial.

Unfortunately, incidental to the retrial, a pleading question arose. It was considered by the Prothonotary who permitted an amendment sought by the opponent to be made. There was then an appeal to the Master who reversed the Prothonotary's decision and refused the amendment. There was then a further appeal to James J, who again permitted the amendment.

The disaffected party now seeks an order from this Court for leave to appeal from James J. The object of the summons is to secure an order from this Court refusing the amendment and so requiring the trial to be conducted upon the pleadings, as earlier filed.