Lauvan Pty Limited & Anor v Bega & Ors (No 2) [2018] NSWSC 155

Supreme Court New South Wales

Medium Neutral Citation: Lauvan Pty Limited & Anor v Bega & Ors (No 2) [2018] NSWSC 155 Hearing dates: 7 June 2017 Decision date: 22 February 2018 Before: Gleeson JA Decision: Application to re-open the second cross-claimant's case to amend the second cross-claim is refused. Catchwords: PROCEDURE – application to re-open and for leave to amend cross-claim to include further particulars alleging breaches of fiduciary duty – where application was made on the eighth day of the trial after evidence closed – whether adequate explanation for delay in seeking the amendment – where cross-defendant would suffer material prejudice by reason of forensic choices and inability to cross-examine witnesses unless recalled – where no offer to pay the costs thrown away by the parties occasioned by the adjournment that would be required to allow the cross-defendant to recall witnesses for cross-examination. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58, 64 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Boardman v Phipps [1967] 2 AC 46 Clay v Clay (2001) 202 CLR 410; [2001] HCA 9 Dennis v Australian Broadcasting Corp [2008] NSWCA 37 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104 Category: Procedural and other rulings Parties: Lauvan Pty Limited (First Plaintiff) Mittabell Pty Limited (Second Plaintiff) Helen Bega (First Defendant) Aidan Bega (Second Defendant) AB Veritas Pty Limited (Third Defendant) Charles Ciappara (Second Cross-Defendant) Representation: Counsel: Mr G Sirtes SC / Ms A Avery-Williams (Plaintiffs) Ms I King (First Defendant) Mr A Ogborne (Second and Third Defendants) Mr J Emmett (Second Cross-Defendant)