Combined Projects (Kogarah) Pty Ltd v Sayour [2017] NSWSC 1207

Supreme Court New South Wales

Medium Neutral Citation: Combined Projects (Kogarah) Pty Ltd v Sayour [2017] NSWSC 1207 Hearing dates: 7 September 2017 Date of orders: 07 September 2017 Decision date: 08 September 2017 Jurisdiction: Common Law Before: Lonergan J Decision: See para [49] Catchwords: CIVIL PROCEDURE – pleadings – amendment to statement of claim – additional plaintiff – additional causes of action – unexplained delay – failure to clarify case as pleaded – vacation of hearing date Legislation Cited: Civil Procedure Act 2005 (NSW) s 56 Cases Cited: Aon Risk Services (Australia) Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 White v Overland [2001] FCA 1333 Category: Procedural and other rulings Parties: Combined Projects (Korgarah) Pty Ltd (Plaintiff) Moustafa Sayour (Defendant) Representation: Counsel: J Stoljar SC & B Michael (Plaintiff) J Gatland & D Smallbone (Defendant)

Solicitors: Corrs Chambers Westgarth (Plaintiff) Adams & Partners Lawyers (Defendant) File Number(s): 2017/22780 Publication restriction: Nil

Judgment 1. The Plaintiff in these proceedings ("CPK") filed a notice of motion on 31 August 2017 seeking leave to file and serve a proposed further amended statement of claim ("PFASOC"). The amendments in broad terms, seek to add a further Plaintiff to the proceedings and to expand the causes of action pursued. A copy of the PFASOC is attached to this judgment. 2. The Defendant opposed the application on a number of bases, including that the proposed amendments were not properly pleaded and amenable to being struck out and that the timing materially prejudices the Defendant as a costs order is not protective of the probable loss of the hearing date. 3. The proceedings are currently listed for hearing on 15 September 2017 with a hearing estimate of 1 day. The hearing was set down at the first directions hearing on 27 June 2017. The proceedings had been commenced by Statement of Claim in January 2017. 4. For the reasons which follow, I have determined that leave to file the PFASOC should be given but that such leave necessitates the vacation of the hearing date. At the end of this judgment I propose a series of case management orders.