CBA v Hannaford [2013] NSWSC 574

The guarantor had already filed several versions of her defence and cross claim. Now she was asking to amend once more this time setting out a new claim under the Contracts Review Act.

The judge confirmed that the Court has a wide power to allow documents and pleadings to be amended, but this power is subject to the “dictates of justice” and there must also be an explanation for any delay in raising the matter. It is not always the case that simply awarding costs will compensate prejudice to the other side.

In this case, the judge stated that the guarantor had not given any adequate explanation for the delay in raising the claim under the Contracts Review Act. His Honour concluded that the guarantor was aware of those rights because she had referred to them in other versions of her defence and claim against the bank.

The judge also considered the tardiness of the way the guarantor had acted in the proceedings including late service of documents and delay. The judge stated that the guarantor had already had four different versions of the claim against the bank and it had reached a point where the Court should refuse to allow her to have a fifth attempt. Amending the claim so late would mean the hearing would take more time and would be delayed, and this would cause the bank prejudice, especially because the sale of the land was already leaving a shortfall. Therefore the judge did not allow the guarantor to amend her claim against the bank.

Click here to read the full judgment

Scroll to Top