Citigroup Pty Limited v Middling [2014] NSWSC 474

Supreme Court New South Wales

Medium Neutral Citation: Citigroup Pty Limited v Middling [2014] NSWSC 474 Hearing dates: 22 and 23 April 2014 Decision date: 28 April 2014 Jurisdiction: Common Law Before: Adamson J Decision: (1) Grant leave to the defendant to file an amended defence and amended cross-claim in the form of the drafts marked MFI 2 and MFI 3 on the defendant's application. (2) Reserve the question of costs. (3) Direct Mr Quy and Mr Elliot to provide written submissions to my Associate and serve them on the other parties to the proceedings within seven days of the date of these reasons as to why an order not be made against either or both of them that they pay the plaintiff's and the first cross-defendant's costs occasioned by and thrown away by the amendment, including the costs of the hearing on 22 and 23 April 2014 and the costs of the adjournment of the hearing of the matter, on an indemnity basis. (4) Direct the parties to prepare short minutes as to the directions sought for the further conduct of the proceedings when the matter is before me for mention on Friday, 2 May 2014 at 9.30 am. Catchwords: APPLICATION - application for leave to amend and adjourn - where failure to include Contracts Review Act relief due to oversight of legal representative - inadequate or false explanation for delay - whether interests of justice require matter to be litigated - relevance of making personal costs order to discretion to allow amendment Legislation Cited: Civil Procedure Act 2005 (NSW), s 56, s 57, s 58, s 59, s 64 Contracts Review Act 1980 (NSW) Trade Practices Act 1974 (Cth), s 51AC Cases Cited: Commonwealth Bank of Australia v Susan Hannaford Pty Limited (No.2) [2013] NSWSC 574 Murphy v Overton Investments Pty Limited [2002] FCA 921 Peddie v Stein (Supreme Court (NSW), Young J, 26 March 1987, unrep) Perpetual Trustee Co Limited v Stojcevski [2013] NSWSC 1612 Tonto Home Loans Australia Pty Limited v Tavares [2011] NSWCA 389 Tran v Perpetual Trustees Victoria Limited [2012] NSWSC 1560 Category: Procedural and other rulings Parties: Citigroup Pty Limited (Plaintiff/2nd Cross Defendant) Dennis James Middling (Defendant/Cross-Claimant) Perpetual Trustees Victoria Limited (First Cross-Defendant) Representation: Counsel: AR Vincent (Plaintiff) S Wheelhouse SC/D Elliott (Defendant/Cross-Claimant) M Ashhurst SC/P Newton (First Cross-Defendant) Solicitors: Norton Rose Fulbright Australia (Plaintiff) Quy Lawyers (Defendant/Cross-Claimant) Kemp Strang (First Cross-Defendant) File Number(s): 2013/47580 Publication restriction: Nil