Azzi & Ors v Volvo [2006] NSWSC 249

New South Wales Supreme Court

CITATION : Azzi & Ors v Volvo [2006] NSWSC 249

HEARING DATE(S) : 7 March 2006

JUDGMENT DATE : 7 March 2006

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 03/07/2006

DECISION : (1) In proceedings 50156 of 2003, I grant leave to the defendant to file an amended reply to the plaintiff's summons for relief under section 106 filed on 8 October 2002, in the form set out in annexure A to the motion filed on 6 March 2006; (2) In proceedings 50146 of 2003, I grant leave to the defendant to file an amended defence to the plaintiff's further amended summons filed on 18 February 2006, in the form set out in annexure A to the motion filed in those proceedings on 6 March 2006; (3) I order that the defendant pay the plaintiff's costs of both motions, insofar as they relate to the question of leave to amend.

CATCHWORDS : PROCEDURE - Amendment – Applications for leave to amend to raise new defences at outset of trial – no prejudice claimed – one new defence is jurisdictional – leave to amend granted – other is contrary to position previously adopted by defendant but not unarguable – whether waived or estopped – held new defence not waived or estopped, leave to amend granted

Civil Procedure Act 2005 (NSW), ss 57, 58, 64 LEGISLATION CITED : Industrial Relations Act 1996 (NSW), s 106 Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth), s 8(1) Trade Practices Act 1974 (Cth), ss 51AC, 52

CASES CITED : Commonwealth v Verwayen (1990) 170 CLR 394 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

50146/03 Tony Azzi (Automobiles) Pty Limited (ACN 069 526 281) (First Plaintiff) Harissa Pty Limited (ACN 620 694 61905) (Second Plaintiff) Antonio Azzi (Third Plaintiff) Asialink Pty Limited (ACN 003 908 898) (Fourth Plaintiff) PARTIES : Volvo Car Australia Pty Limited (ACN 004 830 611) (Defendant)