Randwick CC v Burnett & Burnett [2004] NSWSC 715

New South Wales Supreme Court

CITATION : Randwick CC v Burnett & Burnett [2004] NSWSC 715 HEARING DATE(S) : 12/07/04, 13/07/04, 14/07/04, 15/07/04, 16/07/04, 21/07/04, 22/07/04, 18/08/04 JUDGMENT DATE : 12 October 2004

JUDGMENT OF : Shaw J at 1 DECISION : (1) Accordingly, I propose to order and direct that: (a) leave to amend be granted as sought by the plaintiff and that the defence to the cross claim be amended accordingly; (b) subject to any other or further arguments, that the costs of this application for amendment (both in respect of the written and oral submissions) should be the costs of the defendants in the proceedings. (2) Further directions should now be given with a view to the just and expeditious dispossession of this matter, including the possible recall of witnesses so as to allow procedural fairness to the defendants in relation to the amendment that I have granted.

CATCHWORDS : Interlocutory application - Application by plaintiff to amend its pleadings - Amendment arising out of cross claim filed by defendants to the effect that the defendants were entitled to certain gym equipment left in the premises and that, despite their request, they had been refused access to the equipment and the premises 9 Geo IV c 11 Impounding Act 1898 (NSW) LEGISLATION CITED : Impounding Act 1993 (NSW) ss 3(a), 15, 20(5), 45(2), Legal Profession Act, 1987 (NSW) s198L Supreme Court Rules 1970 (NSW) Pt 20, r 1(2) Baillie v Auburn M C (1919) 5 LGR 9 Banks v Ferrari [2000] NSWSC 874 (7 August 2000; revised 4 September 2000) Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 CASES CITED : Hibbert v McKiernan [1948] 2 KB 142 Horton v Jones & Ors (No 2) (1939) 39 SR (NSW) 305 Ketteman v Hansel Properties Ltd [1987] 1 AC 189 Queensland v J L Holdings Pty Ltd (1977) 189 CLR 146 Woolworths v Waverley Council [1999] NSWSC 308 (20 April 1999) PARTIES : Randwick City Council John Robert Burnett & Carmel Burnett FILE NUMBER(S) : SC 20947 of 1997 COUNSEL : R B Wilson (Plaintiff) M J Stevens (Defendants) SOLICITORS : Bowen & Gerathy (Plaintiff) Corrs Chambers Westgarth Lawyers (Defendants)