Anthony Magafas & Anor v Peter Carantinos & Ors [2007] NSWSC 487

New South Wales Supreme Court

CITATION : Anthony Magafas & Anor v Peter Carantinos & Ors [2007] NSWSC 487

HEARING DATE(S) : 2/04/07, 4/04/07, 5/04/07, 11/04/07, 16/04/07 - 20/04/07, 23/04/06, 26/04/06

JUDGMENT DATE : 15 May 2007

JURISDICTION : Equity Division

JUDGMENT OF : Einstein J

DECISION : Leave granted.

CATCHWORDS : Leave to amend

Anthony Magafas (First Plaintiff) Pac Com Pty Limited (Second Plaintiff) PARTIES : Peter Carantinos (First Defendant) Fotini Carantinos (Second Defendant) Artesian Pty Limited (Third Defendant)

FILE NUMBER(S) : SC 2670/06

COUNSEL : Mr T Alexis SC, Mr S Golledge (Plaintiffs) Mr CRC Newlinds SC, Mr A Bowen (Defendants)

SOLICITORS : Rockliffs (Plaintiffs) Munro Lawyers (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Einstein J

Tuesday 15 May 2007

2670/06 Anthony Magafas & Anor v Peter Carantinos & Others JUDGMENT – Reasons for leave to amend Application for leave to amend paragraph 9 (ii) of Amended Summons dated 28 November 2006 1 The application to amend was the subject of a decision notified to the parties with the reasons to follow at an appropriate time. The reasons are as now set out. 2 It is clear that when the statement of claim was filed on 22 June 2006 it claimed [paragraph 9] that to the extent that Mrs Carantinos obtained a legal interest as a result of the purchase of 43 Riverside Crescent with Mr Carantinos, she was a volunteer in respect of that purchase and /or she took that interest with notice of the beneficial interest of the Pac Com partnership or joint-venture. 3 Somewhere along the line as between that original statement of claim and the propounding of the amended statement of claim, the reference to Mrs Carantinos taking an interest with notice of the beneficial interest of the Pac Com partnership or joint venture is now said to have been inadvertently altered to become that she took the interest with notice of the beneficial interest of Pac Com only. 4 In this regard it is appropriate to refer to the definitions to be found in paragraph 1 of the initial statement of claim in relation to what was defined to be the partnership or joint-venture. 5 The reason advanced by senior counsel for the Magafas interests as to the reason for the late application to amend is that he had not understood that this was in issue and that the mistake was obvious when one compared the earlier and the later pleadings. 6 The Court determines applications for leave to amend in terms of the specifics of the occasion and the interests of justice. The arguments put forward by senior counsel for the Carantinos parties were of two dimensions: