Butterfield Services Pty Ltd v Bentley [2013] NSWSC 1217

Supreme Court New South Wales

Medium Neutral Citation: Butterfield Services Pty Ltd v Bentley [2013] NSWSC 1217 Hearing dates: 14 December 2012, 7 February 2013 Decision date: 30 August 2013 Jurisdiction: Common Law Before: Button J Decision: (1) The plaintiff has leave to file by 4pm on Thursday 12 September 2013 an amended statement of claim, in the form provided to the defendant's solicitors on 14 December 2012. (2) Without admission by the plaintiff in respect of the need for security for the defendant's costs to be provided, the plaintiff is to provide additional security for the defendant's costs of these proceedings in the sum of $30,000 ("the Additional Security") by Friday 6 September 2013. The Additional Security is to be provided by an increase of $30,000 in the sum secured under the first registered mortgage no. AG695848 in favour of the defendant, in respect of the property contained in folio identifier 6/SP10414 located at and known as Unit 6, 65A Elizabeth Bay Road, Elizabeth Bay NSW owned by Mr William Herd. The Additional Security will be provided in the form of a variation of mortgage to registered mortgage no. AG695848 to increase the total sum secured to $126,605. (3) The plaintiff is to pay the defendant's costs thrown away (if any) by reason of the amendments. (4) The costs of the motion are to be costs in the cause, except for the costs of 2 July 2012 which are to remain reserved. (5) The matter is listed at 9am on Friday 13 September 2013 in the Common Law Registrar's List. Catchwords: PRACTICE AND PROCEDURE - application to amend statement of claim - outside prescribed period - leave required - breach of contract claimed - limitation defence pleaded - fraudulent concealment of cause of action alleged - whether fraud sufficiently pleaded - whether fraud claim doomed to failure - whether prejudice suffered by defendant - whether damages need to be quantified - application for leave to amend granted Legislation Cited: Civil Procedure Act 2005 Limitation Act 1969 Uniform Civil Procedure Rules 2005 Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Banque Commerciale SA, En Liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279 Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Seymour v Seymour (1996) 40 NSWLR 358 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 Category: Interlocutory applications Parties: Butterfield Services Pty Ltd (applicant) Jonathon Bentley (respondent) Representation: Counsel: C Palmer (applicant) N Bearup (respondent) Solicitors: Bridges Lawyers (applicant) TressCox Lawyers (respondent) File Number(s): 2011/26532