Hexiva Pty Ltd v Lederer [2006] NSWSC 318

New South Wales Supreme Court

CITATION : Hexiva Pty Ltd v Lederer [2006] NSWSC 318 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 23/03/2006

JUDGMENT DATE : 23 March 2006

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 03/23/2006

DECISION : Leave granted to D2 to file amended first cross-claim for contributions against D1. Leave granted to D1 to file amended defence raising limitation defence. Application by D1 to strike out P's reply and defence to second cross-claim dismissed. Leave granted to Ps to further amend Statement of Claim and Reply. Order made for separate determination of liability before inquiry as to compensation. Order for further discovery by D2. Order setting aside Notice to Produce served by Ps on D2. Order for production of documents by Ps under D1's Notion to Produce.

CATCHWORDS : PROCEDURE – Amendment – where amendment will raise new claim against party who has died since proceedings commenced, but where claim could be brought against estate in separate proceedings without leave – where new defence raises only a question of law – Pleading – where reply raises allegations of fraud which had been disallowed in amended statement of claim, after death of defendant – where those allegations are properly made in reply, death does not preclude their being raised – Separate questions – whether there should be separate inquiry as to compensation – where plaintiff will have to elect between remedies – Evidence – Notices to Produce – where it appears from documents and admissions that not all documents caught have been produced – "excluded document"