Yakiti Pty Ltd v MacDonald (No. 2) [2018] NSWSC 1970

Supreme Court New South Wales

Medium Neutral Citation: Yakiti Pty Ltd v MacDonald (No. 2) [2018] NSWSC 1970 Hearing dates: 14 December 2018 Date of orders: 18 December 2018 Decision date: 18 December 2018 Jurisdiction: Common Law Before: Davies J Decision: (1) Leave to the cross-claimant to amend paragraphs 10 and 45(c)(iii) of the third further amended cross-claim in the manner set out in paragraph [15] of this judgment. The amendments are to be made in writing on the third further amended cross-claim;

(2) The cross-claimant is permitted to rely on the evidence in the affidavit of Jake Robert Henley sworn 5 December 2018 excluding paragraphs 11 to 19, and to rely on the evidence in the affidavit of Kate Marie McDonald sworn 5 December 2018 excluding paragraphs 29 to 32.

(3) The cross-claimant is to pay the cross-defendants' costs of the applications determined in this judgment. Catchwords: CIVIL PROCEDURE – pleadings – amendment – late application for amendment to third further amended cross-claim – hearing date at commencement of new law term - where proposed amendments raise new factual matters that are not clearly articulated and include claim for relief under different statutory regime – where no adequate explanation for late application

EVIDENCE – affidavit evidence in reply – whether evidence was responsive to evidence of cross-defendants – whether late admission of evidence would prejudice cross-defendants Legislation Cited: Competition and Consumer Act 2010 (Cth) sch 2 – Australian Consumer Law Australian Securities and Investment Commission Act 2001 (Cth) Civil Procedure Act 2005 (NSW) s 58 Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 In the matters of Seedz Investments Pty Limited, Snap Fitness Double Bay Pty Ltd, Yelneh Industries Pty Ltd and Fitness Management Pty Ltd [2017] NSWSC 650 Yakiti Pty Ltd v MacDonald [2018] NSWSC 1392 Yakiti Pty Ltd v MacDonald [2018] NSWSC 1505 Texts Cited: Nil Category: Procedural and other rulings Parties: Yakiti Pty Ltd (Plaintiff/Cross-Defendants) Katie Marie McDonald (Defendant/Cross-Claimant) Babak Moini (Second Cross-Defendant) Kon Prin (Third Cross-Defendant) Registrar General (Fourth Cross-Defendant) Representation: Counsel: V Bedrossian (Plaintiff/First and Second Cross-Defendants) D Kelly (Third Cross-Defendant) L Chan (Defendant-Cross-Claimant)