Permanent Custodians Limited and Anor v King and Ors [2010] NSWSC 509

New South Wales Supreme Court

CITATION : Permanent Custodians Limited and Anor v King and Ors [2010] NSWSC 509

HEARING DATE(S) : 6 May 2010

JUDGMENT DATE : 25 May 2010

JUDGMENT OF : Schmidt J

1. The Fourth Cross–defendant pay Permanent Custodians Limited's costs of its motion filed on 8 September 2009. DECISION : 2. The Cross Claimant pay the Fourth Cross–defendant's costs thrown away by reason of the case proceeding at trial on the issue of damages on the basis of the terms of Order 6 of the Terms of Settlement made by the Court on 20 February 2008 (which was subsequently rectified). 3. The Cross Claimant pay the Fourth Cross–defendant's costs of his motion filed on 31 July 2009.

CATCHWORDS : PROCEDURE - judgments and orders - amending, varying and setting aside - leave sought by Fourth Cross Defendant to amend defence - question of proportionate liability - concurrent wrongdoer - whether Part 4 of the Civil Liability Act applies - proportionate liability provisions do not apply - failure to plead reliance on these provisions in defence - Part 4 of the Civil Liability Act must be pleaded by defendant - late amendment - leave refused - TORTS - negligence - apportionment of responsibility and damages - PROCEDURE - costs - departing from the general rule - conduct of parties - orders made

Contracts Review Act 1987 Civil Liability Regulation 2003 Civil Liability Regulation 2009 Civil Liability Act 2002 LEGISLATION CITED : Civil Liability Act 2005 Civil Procedure Act 2005 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 (NSW)