Chocolate Factory Apartments Limited v Westpoint Finance Pty Limited & Ors [2003] NSWSC 547

New South Wales Supreme Court

CITATION : Chocolate Factory Apartments Limited v Westpoint Finance Pty Limited & Ors [2003] NSWSC 547 HEARING DATE(S) : 17/06/03, 18/06/03 JUDGMENT DATE : 18 June 2003 JURISDICTION: Equity Division JUDGMENT OF : Einstein J DECISION : Leave granted to plaintiff to amend statement of claim and in one instance question of leave to abide proper furnishing of particulars.

CATCHWORDS : Practice and procedure - Part 72 Supreme Court Rules Reference - Power in referee to permit amendments or additions to pleadings - Referee disallowing application by plaintiff for leave to amend - Application to the court by plaintiff to give directions granting the leave to amend - Ongoing reference - Principles applicable on such applications to the Court - Considerations to be taken into account - interests of justice likely require it to be quite clearly demonstrated that interlocutory decision by referee clearly miscarried before referee's decision will be interfered with - Case management by referee of parameters of application for leave to amend - Overriding Purpose Rule to facilitate the just, quick and cheap resolution of the real issues in civil proceedings - Long term view of reference taken into account - Orders made permitting amendments sought LEGISLATION CITED : Corporations Act 2001 Supreme Court Rules Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 AMP Fire and General Insurance Co Ltd v Leighton Contractors Pty Ltd [unreported, Court of Appeal, 14 July 1993] Ampolex Limited v Perpetual Trustee Company (Canberra) Ltd & Ors S100/1996 (22 May 1996) Cropper v Smith (1884) 26 ChD CASES CITED : Eydmann v Premier Accumulator Company Limited (1916) 85 LJKB 1037 Queensland v J L Holdings Pty Limited (1996) 189 CLR 146 Trevor Howse Associates Pty Limited v Dessmann (2003) NSWCA 148 U.S Surgical Corporation v Hospital Products (1983) 2 NSWLR 157 Xuereb v Viola (1989) 18 NSWLR 453 Chocolate Factory Apartments Limited (Plaintiff) PARTIES : Westpoint Finance Pty Limited (First Defendant) Westpoint Constructions Pty Limited (Second Defendant) Westpoint Management Limited (Third Defendant) FILE NUMBER(S) : SC 2583/02 COUNSEL : Mr F Corsaro SC, Mr VR Gray (Plaintiff) Mr DE Grieve QC, Mr D Hicks (Defendants) SOLICITORS : Frank G Kalyk (Plaintiff) Robinson Beale Horton McMinn (Defendants)