British American v Kanakis [2001] NSWSC 48

New South Wales Supreme Court

CITATION : British American v Kanakis [2001] NSWSC 48 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 50127/00 HEARING DATE(S) : 02/02/01 JUDGMENT DATE : 2 February 2001

British American Tobacco Australia Limited - Plaintiff PARTIES : Mercury Kanakis - First Defendant Apollo Photios Kanakis - Second Defendant JUDGMENT OF : Rolfe J

COUNSEL : Mr I.M. Jackman - Plaintiff Mr N.G. Rein SC/Mr M.S. White - Defendants SOLICITORS : Clayton Utz - Plaintiff Diamond Peisah & Co - Defendants CATCHWORDS : Application for leave to amend granted. Held that one proposed amendment was not futile and, without deciding on the others, that they should be allowed. LEGISLATION CITED : Jurisdiction of Courts (Cross-Vesting) Act 1987 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 CASES CITED : Webster & Anor v Lampard (1993) 177 CLR 598 Commonwealth Development Bank v Windermere Pastoral Company Pty Limited [1999] NSW Supreme Court 518 (3 June 1999) - unreported Wickstead & Ors v Browne (1992) 30 NSWLR 1 DECISION : 1. I grant leave to the defendants to file an Amended Defence and Amended Cross Claim in the form annexed to the affidavit of Sharon Claire Freund affirmed on 29 January 2001; 2. I order that pursuant to s.5(1) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) that these proceedings be transferred to the Federal Court of Australia for determination by that Court; 3. I order that plaintiff pay the costs of the defendants' Notice of Motion; 4. I order that the exhibits be returned