Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371 Hearing dates: 19 November 2015 Decision date: 01 December 2015 Before: Basten JA at [1]; Ward JA at [11]; Tobias AJA at [58] Decision: 1. Leave to appeal be granted and the appeal allowed. 2. The orders made by the Court below on 12 June 2015 be set aside. 3. In lieu thereof: (a) The first defendant's amended notice of motion dated 28 April 2015 be dismissed. (b) The first defendant pay the plaintiff's costs of and incidental to the hearing of the amended notice of motion. (c) Pursuant to s 64 of the Civil Procedure Act 2005 (NSW), the plaintiff be granted leave to file an amended statement of claim in the form annexed to his notice of motion filed 30 April 2015 and marked "A". (d) Subject to (e) below, the first defendant pay the plaintiff's costs of the hearing of the plaintiff's notice of motion filed 30 April 2015 beyond those that would otherwise have been incurred had the first defendant not opposed the grant of leave to amend the statement of claim. (e) The plaintiff pay the costs thrown away by the amendment of the statement of claim in accordance with (c) above. 4. The respondent pay the applicant's costs of the application for leave to appeal and the appeal. Catchwords: APPEAL – application for leave to appeal – interlocutory decision – refusal to grant leave to amend statement of claim and consequent summary dismissal of proceedings against respondent – concurrent hearing – claims for misleading and deceptive conduct and negligence – limitation of action – whether the primary judge erred in refusing leave to amend and summarily dismissing proceedings on basis that cause of action unarguably accrued no later than 30 November 2008 Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), s 12DA(1) Civil Procedure Act 2005 (NSW), Pt 6, s 64 Fair Trading Act 1987 (NSW), s 42 Supreme Court Act 1970 (NSW), s 101 Trade Practices Act 1974 (Cth), s 52 Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 28.4 Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 House v The King [1936] HCA 40; (1936) 55 CLR 499 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 In Re the Will of FB Gilbert (Dec'd) (1946) 46 SR(NSW) 318 Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25; (1999) 199 CLR 413 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388 Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 Re Luck [2003] HCA 70; (2003) 78 ALJR 177 Shaw v State of New South Wales [2012] NSWCA 102 Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 Category: Principal judgment Parties: Pierre Khoury (Applicant) Coffey Projects (Australia) Pty Ltd (Respondent) Representation: Counsel: MF Newton (Applicant) K Andronos SC (Respondent)