Collins v Campbell [2014] NSWSC 310

Supreme Court New South Wales

Medium Neutral Citation: Collins v Campbell [2014] NSWSC 310 Hearing dates: 21 March 2014 Decision date: 21 March 2014 Jurisdiction: Common Law Before: Davies J Decision: (1) Leave to the Plaintiffs to file a Further Amended Statement of Claim in the form annexed to the Plaintiffs' written submissions, such Further Amended Statement of Claim to be filed and served by 28 March 2014; (2) The Defendants are to file defences by 11 April 2014. (3) I make ancillary orders in terms of paragraphs 2 and 3 of the notice of Motion filed 13 February 2014. (4) I order that the costs of this application be the Plaintiff's costs in the cause. (5) I extend the time for evidence in reply to 11 April 2014. (6) I direct that the parties attend a court-annexed mediation. (7) The parties are given leave to approach the listing manager in both matters for a hearing. Such hearing of both matters will be together and the evidence in the one will be evidence in the other. Overall the hearing time will be five days. (8) Pursuant to Rule 7.10 UCPR I appoint Lisa Marie Campbell of 1/40 Stewart St North Entrance New South Wales as administrator ad litem of the estate of Ralph Gordon Barry Campbell formerly the third Defendant and first cross claimant in the proceedings for the purposes of the present proceedings. Catchwords: PROCEDURE - amendment - possession proceedings - application to amend to include subrogation claim by payment out of prior mortgagee - late application - no new disputed facts - question of law - principle in Collier v Morlend Finance - amendment allowed Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 Bank of Western Australia Ltd v Tannous [2010] NSWSC 1319 Collier v Moreland Finance (1989) 6 BPR 13,337; [1989] ANZ Conv R 515 Lapin v Abigail (1929) 44 CLR 166 Category: Interlocutory applications Parties: Gerald Thomas Collins as joint and several trustee of the Bankrupt Estate of Gregory William Campbell and the Bankrupt Estate of Jennifer Ivy Campbell (First Plaintiff) Matthew Leslie Joiner as joint and several trustee of Gregory William Campbell and the Bankrupt Estate of Jennifer Ivy Campbell (Second Plaintiff) Commonwealth Bank of Australia (Third Plaintiff) Gregory William Campbell (First Defendant) Jennifer Ivy Campbell (Second Defendant) Ralph Gordon Barry Campbell (Third Defendant/Cross-Claimant) Pamela Jean Campbell (Fourth Defendant/Cross-Claimant) Representation: Counsel: P Dowdy (Plaintiffs) G Campbell (In person for First and Second Defendants) A Rogers (Third and Fourth Defendants/Cross-Claimants) Solicitors: Gadens Lawyers (Plaintiff) G Campbell (In person for First and Second Defendants) Harrington Maguire & O'Brien (Third and Fourth Defendants/Cross-Claimants) File Number(s): 2012/185361