CREASY'S GRAIN ENTERPRISES PTY. LIMITED v. MALTCO PTY. LIMITED [2006] NSWSC 531

New South Wales Supreme Court

CITATION : CREASY'S GRAIN ENTERPRISES PTY. LIMITED v. MALTCO PTY. LIMITED [2006] NSWSC 531

HEARING DATE(S) : 29 November 2005; 1 December 2005

JUDGMENT DATE : 6 June 2006

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

DECISION : Leave to the defendant to amend its defence, but with appropriate conditions. Such conditions are aimed at ensuring that, having failed to comply with directions in the past, that the defendant is subjected to appropriate conditions which, if it does not or cannot meet, will prevent the defendant from relying upon the set-off it proposes. Parties given the opportunity to address the question of the appropriate conditions .

CATCHWORDS : Leave to amend defence - appeal from decision of Associate Justice not to grant leave to amend - discretionary principles applicable to the granting of leave to amend pleadings - Associate Justice erred in failing to identify 'the relevant circumstances of the particular case' - the Associate Justice erred in failing to identify the grounds for his decision that the registrar had granted leave when it was not 'in the best interests of justice' - the Associate Justice erred in failing to identify relevant prejudice which would operate against the plaintiff and which would warrant refusal of the defendant's proposed amendment - operation of s.64, Civil Procedure Act 2005 - role of the court on an appeal from an Associate Justice is to examine for itself whether there is a sound basis on the evidence that was before the Associate Justice for the ultimate conclusion and orders made - the history of the proceedings will often be relevant to the exercise of the discretion to grant leave to amend but will not, absent specific or actual prejudice, warrant the refusal of leave - dismissal of a cross-claim does not per se create a bar to the grant of leave to amend - appeal allowed and leave granted to defendant to file and serve an amended defence on conditions, the purpose of which is to ensure that the plaintiff is not delayed or prejudiced by the defendant.