HP Mercantile Pty Ltd v Clements [2014] NSWSC 213

Supreme Court New South Wales

Medium Neutral Citation: HP Mercantile Pty Ltd v Clements [2014] NSWSC 213 Hearing dates: 5 March 2014 Decision date: 06 March 2014 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Orders made for defendant to have leave to file and serve a Fourth Further Amended Defence containing some but not all amendments sought. Defendant to pay costs thrown away by reason of amendment. Leave granted for defendant to make request that plaintiff calls a witness. Application for order to direct plaintiff to comply with request refused. Catchwords: PROCEDURE - pleadings - amendment - where defendant seeks leave to file amended defence - where hearing is due to commence and there have been lengthy delays - whether leave for proposed amendments should be refused on case management grounds - whether plaintiff will suffer prejudice in addressing amendments. EVIDENCE - request to call witnesses - application for order compelling plaintiff to call a witness under Evidence Act 1995 (NSW) ss 167, 169 - where plaintiff refused to comply with request - whether defendant should have leave to make request outside time limit - whether plaintiff's refusal to comply with request made without reasonable cause - matters to be considered in exercise of Court's discretion to order party to comply with request to call a witness. Legislation Cited: - Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 64, 64(2) - Evidence Act 1995 (NSW) ss 69(2), 135, 167, 168, 169(1), 169(1)(c), 169(4), 169(5) - Trade Practices Act 1974 (Cth) s 51A Cases Cited: - Australian Competition and Consumer Commission v Cabcharge Australia Ltd (No 2) [2010) FCA 837 - AON Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 - Deputy Commissioner of Taxation v Trimcoll Pty Limited [2005] NSWSC 1324 - Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 - Iacullo v Iacullo [2013] NSWSC 1517 Category: Interlocutory applications Parties: HP Mercantile Pty Ltd (Plaintiff) Phillip Clements (Defendant) Representation: Counsel: P M Knowles (Plaintiff) C R C Newlinds SC/A d'Arville (Defendant) Solicitors: Versace McKenzie Lawyers (Plaintiff) Legal & Commercial Solutions (Defendant) File Number(s): 2009/289202