Marshall v Prescott (No 4) [2013] NSWSC 455

Supreme Court New South Wales

Medium Neutral Citation: Marshall v Prescott (No 4) [2013] NSWSC 455 Hearing dates: 29 April 2013 Decision date: 01 May 2013 Jurisdiction: Common Law Before: Schmidt J Decision: 1. Mr Prescott be granted leave to file the amended defence. 2. The plaintiffs serve any further evidence on which they wish to rely in relation to the estoppel defences within 6 weeks of today's date. 3. Mr Prescott to file and serve any evidence in reply within a further 3 weeks. 4. The plaintiffs have leave to file any further evidence on which they wish to rely, if given access to the documents the subject of the proceedings in the Court of Appeal. 5. In that event, the parties are directed to confer as to a timetable for the service of any further evidence. 6. In the event of any disagreement as to such evidence, the parties have liberty to approach on 3 days notice. 7. Mr Prescott is to bear the costs of the plaintiffs' motion and the hearing of Mr Prescott's application, as agreed or assessed. Catchwords: PROCEDURE - notice of motion - pleadings - leave sought to file amended defence - estoppel arguments - no additional evidence to be relied upon - leave granted to file the amended defence - order seeking trial date to be vacated - not granted - costs - orders Legislation Cited: Civil Procedure Act 2005 Limitation Act 1969 Uniform Civil Procedure Rules 2005 Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Commonwealth v Verwayen ("Voyager case") [1990] HCA 39; (1990) 170 CLR 394 Marshall v Prescott; Marshall v Fleming [2012] NSWSC 188 Marshall v Prescott (Supreme Court of New South Wales, Garling J, 17 October 2012, unreported) Category: Procedural and other rulings Parties: Margaret Lesley Marshall (First Plaintiff) Kim Neil Marshall (Second Plaintiff) Michael Prescott (Defendant) Representation: Counsel: Mr CJ Bevan and Mr EW Young (Plaintiffs) Mr W McManus (Defendant) Solicitors: Turner Freeman (Plaintiffs) Colin Biggers and Paisley (Defendant) File Number(s): 2009/297404 Publication restriction: None