Hirshman v Dixon-Smith (No 2) [2015] NSWSC 1958

Supreme Court New South Wales

Medium Neutral Citation: Hirshman v Dixon-Smith (No 2) [2015] NSWSC 1958 Hearing dates: 2 December 2015 Date of orders: 18 December 2015 Decision date: 18 December 2015 Jurisdiction: Equity Before: Robb J Decision: The parties are to bring in short minutes of order to give effect to these reasons for judgment Catchwords: PROCEDURE – discovery – application for discovery after commencement of suit – discovery required to determine whether statement of claim should be amended and if so to plead amendment properly – defendants do not oppose discovery for some categories, require variation of other categories, and oppose yet other categories – discovery ordered for certain categories of documents, others varied or rejected

PROCEDURE – whether plaintiffs' notice of motion seeking leave to file amended pleading be dismissed – plaintiffs should have opportunity to propound further draft pleading after the defendants' discovery is provided – notice of motion stood over

PROCEDURE – costs – two failed attempts by plaintiffs to amend pleading – plaintiffs should have previously sought discovery to properly amend pleadings – previous judgment found many flaws in plaintiffs' draft pleadings not attributed to absence of discovery by defendants – plaintiffs to pay costs of the defendants concerning previous unsuccessful pleading amendment applications Legislation Cited: Civil Procedure Act 2005 (NSW) Supreme Court (General Civil Procedure) Rules 2005 (Vic) Cases Cited: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 Hirshman v Dixon-Smith [2015] NSWSC 1599 White v Overland [2001] FCA 1333 Category: Procedural and other rulings Parties: James Henry Hirshman (first plaintiff) Meryn Jane Hirshman (second plaintiff) Merjan Pty Ltd as Trustee of the Hirshman Family Discretionary Trust (third plaintiff) Stuart Dixon-Smith (first defendant) Townway Pty Ltd (second defendant) Representation: Counsel: D Pritchard SC/J Emmett (plaintiffs) M T Steele SC/M F Newton (defendants)