Andrew O’Brien KC (with J Peters) appeared for the plaintiffs, instructed by Norton Rose Fulbright.
The dispute concerned the plaintiffs’ claim for payment of money allegedly owed under a disbursement funding agreement. The defendant sought leave to amend its defence to plead an additional term of the agreement (‘Cashflow Term’), to the effect that its obligation to repay the principal advanced for unsuccessful matters would not arise until it received sufficient cashflow from successful matters funded by the first plaintiff.
The plaintiffs opposed the amendment on several grounds: (1) that it would effectively withdraw admissions made in the amended defence without any application to do so; (2) that the proposed amendment was deficient in form; and (3) that the defendant had failed to provide an adequate explanation for not seeking the amendment earlier in the proceeding.
Cooper J held that, on balance, leave to amend should be granted to the defendant to plead the operation of the Cashflow Term, on the condition that it make further amendments to plead the conditional application of the Write Off Term. His Honour did not accept that the plaintiffs’ objections justified preventing the defendant from advancing an arguable defence.
The judgment can be read by clicking here
