CBA v Hamilton [2010] NSWSC 1138

This case involved allegations of a forgery. The borrowers cross-claimed against their solicitor and Lawcover denied him cover on the ground of fraud. He cross-claimed against Lawcover and on the second day of the trial sought to amend his pleading to allege fraud against one of the borrowers. The judge denied leave on the following grounds:

I have little doubt that if leave to file the proposed amended was granted that substantial prejudice would flow to Mr and Mrs Hamilton. They would require separate legal representation because of the serious assertion of forgery.

It seems to me that what is asserted on behalf of the second cross-defendant as to Mr Hamilton’s involvement in forgery requires a logical leap and does not flow as a matter of easy inference from what is said to be the evidence.

In any event, the most important consideration is that the information which is particularised in the amended statement of cross-claim was available to the second cross-defendant from the time that Mrs Hamilton’s affidavit was served.  We are now in the second day of a hearing. It was open to the second cross-defendant to make an application prior to the commencement of the hearing to amend his pleadings. He did not do so. In my view, the dictates of justice oblige me, on balance, to disallow the amendment. 

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