Ghougassian v Sutherland

[2013] NSWCA 168

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Taking of accounts
3. › Account between mortgagor and mortgagees
4. › Statements of account as equivalent to pleadings
5. › Whether claim not included in statements of account required amendment
6. › Uniform Civil Procedure Rules 2005 (NSW), rr 46.2, 46.5, 46.6, 46.7
1. Practice and Procedure
2. › Amendment
3. › Late amendment after hearing and delivery of reasons
4. › Discretion to refuse amendment
5. › Whether prejudice to opposing party from inability to raise arguable defence justified refusal
6. › Whether existence of arguable defence relevant to exercise of discretion
1. Appeal
2. › Standard of appellate review
3. › Appeal from discretionary decision
4. › Whether primary judge erred in formulation of relevant question or exercise of discretion

Quick Take

In proceedings for the taking of an account under UCPR Part 46, the statements of account filed by the accounting party and the notice of errors filed by the objecting party perform the function of pleadings and define the issues for determination. A claim not included in the statements of account constitutes an amendment requiring leave, and the court may refuse such leave where the opposing party would be prejudiced by the inability to raise an arguable defence without reopening the hearing.