National Australia Bank Limited v Kim Francis Hunter & Anor (No 2) [2013] NSWSC 763

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Limited v Kim Francis Hunter & Anor (No 2) [2013] NSWSC 763 Hearing dates: 30 April, 1 May, 9 May 2013 Decision date: 13 June 2013 Jurisdiction: Common Law Before: Slattery J Decision: Cross claimant granted leave to amend the cross-claim but excluding any proposed amendment in relation to the Trade Practices Act 1974. Catchwords: PROCEDURE - pleadings - the cross-claimant seeks leave to amend the cross claim by adding Code of Banking Practice and misleading and deceptive conduct causes of action - only misleading and deceptive conduct amendment contested - whether the respondent prejudiced by the contested amendment - the evidence closed after three days hearing and extensive cross-examination including via video link -further cross-examination ordinarily possible to cure prejudice during the trial - but here the evidence already concluded and too late to reopen the trial - principles in relation to amendments to pleadings discussed - HELD: leave to make the contested amendments refused. Legislation Cited: Australian Securities and Investments Commission Act 2001 Civil Procedure Act 2005, s 64 Code of Banking Practice Competition and Consumer Act 2010, s 51ACA, s 131A Trade Practices Amendment (Australian Consumer Law) Act (No.2) 2010, Schedule 7 Trade Practices Act 1974, s 51AF, s 52 Cases Cited: Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 Gordon v MacGregor (1909) 8 CLR 316 National Australia Bank Limited v Kim Francis Hunter & Anor [2013] NSWSC 71 Category: Interlocutory applications Parties: Plaintiff/Respondent: National Australia Bank Limited First Defendant/Applicant: Kim Francis Hunter Second Defendant/Applicant: Kim Lee Hunter Representation: Counsel: Plaintiff/Respondent: B. Koch First & Second Defendants/Applicants: P.J. Cutler Solicitors: Plaintiff/Respondent: Turks Legal First & Second Defendants/Applicants: Hunter Flood Lawyers File Number(s): 2011/356806 Publication restriction: No