Patakas v Bevan [2017] NSWSC 1592

Supreme Court New South Wales

Medium Neutral Citation: Patakas v Bevan [2017] NSWSC 1592 Hearing dates: 16 November 2017 Date of orders: 16 November 2017 Decision date: 22 November 2017 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Refuse first defendant's application for the relief sought in prayer 2 of first defendant's notice of motion filed 29 August 2017. 2. Upon the undertaking of the first defendant that he will not seek leave further to amend his cross-claim in these proceedings to include any relief in relation to costs assessment applications the subject of the notation made by Sackar J to the orders made by his Honour on 3 February 2017, grant leave to the first defendant to amend his defence in the form annexed to the affidavit of William Anthony Musgrave sworn 6 November 2017. 3. Direct the first defendant to file the amended defence by 4pm on Friday 17 November 2017. 4. Order the first defendant to pay the plaintiff's costs thrown away by the amendment of the defence. 5. Order the first defendant to pay the plaintiff's costs of the hearing today of the application for the orders sought in prayer 2 of the Notice of Motion filed 29 August 2017 and prayer 1 of the Notice of Motion filed 6 November 2017. Catchwords: CIVIL PROCEDURE — Pleadings — Amendment

CIVIL PROCEDURE — Orders and notations – Leave sought to "withdraw" a statement or offer said to have been recorded in a notation to court orders – Status of notation – Whether notation amounted to acceptance of an undertaking proffered in lieu of an injunction –Notation no more than a record of forensic decision taken in the course of proceedings; neither an undertaking accepted in lieu of an injunction nor an "open offer" Legislation Cited: Australian Consumer Law, s 237 Competition and Consumer Act 2010 (Cth), Sch 2 Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1425 Biba Ltd v Stratford Investments Ltd [1973] Ch 281 Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 Jeans v Commonwealth Bank Ltd (2003) 204 ALR 327; [2003] FCAFC 309 Lavery-Fenelon v Nicholas [2014] NSWCA 342 Le Meilleur Pty Ltd v Jin Heung Mutual Savings Bank Co Ltd [2011] NSWSC 1115 Patakas v Bevan [2016] NSWSC 1618 Seaton v Burnand [1900] AC 135 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 Texts Cited: K Handley, Estoppel by Conduct and Election (1st ed, Sweet & Maxwell) Category: Procedural and other rulings Parties: Evangelos Patakas (Plaintiff) Christopher John Bevan (First Defendant) Richard Mark Hamwood (Second Defendant) Frances Alexandra Hutley (Third Defendant) Stephen Lancken (Fourth Defendant) John Levingston (Fifth Defendant) John McGruther (Sixth Defendant) Representation: Counsel: M Ashurst SC with S Tame (Plaintiff) S Lawrance (Defendant)