H.S.D. Co Pty Ltd v Masu Financial Management Pty Ltd [2008] NSWSC 1279

New South Wales Supreme Court

CITATION : H.S.D. Co Pty Ltd v Masu Financial Management Pty Ltd [2008] NSWSC 1279

HEARING DATE(S) : 11 September 2008

JUDGMENT DATE : 3 December 2008

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

(i) Leave be granted to the first and second defendants to amend their amended defence in accordance with the proposed second amended defence annexed the affidavit of Steve Vrtkovski, sworn 15 August 2008, except that such proposed second amended defence may not include paragraphs 18-22 thereof;

DECISION : (ii) Leave be granted to the first and second defendants to file a further amended defence to plead proportionate liability, to the extent they are advised so to do, and to the extent that they can overcome the deficiencies in the current proposed second amended defence;

(iii) The defendants pay the plaintiff's costs, of and incidental to the notice of motion, as agreed or assessed, and the defendants pay the plaintiff's costs thrown away, if any, as a result of the amendments.

CATCHWORDS : PRACTICE AND PROCEDURE – amended defence – proportionate liability – must be pleaded in manner that discloses the cause of action and damage as if initiating process – amendments disallowed – leave to re-plead

Australian Securities and Investments Commission Act 2001 (Cth) LEGISLATION CITED : Civil Liability Act 2002 Civil Procedure Act 2005 Trade Practices Act 1974 (Cth)

CATEGORY : Procedural and other rulings

Caltex Oil (Australia) Pty Ltd v Dredge 'Willemstad' [1976] HCA 65; (1976) 136 CLR 529 Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216; (2007) 164 FCR 450 CASES CITED : Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 UCAK v Avante Developments [2007] NSWSC 367 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515