The Court refused a late application by the defendants to amend their defence on the fourth day of hearing to introduce an alternative statutory defence under s 34 of the Property and Stock Agents Act 2002 (NSW), where the defendants had previously disavowed reliance on that section during opening submissions. The Court found the explanation for delay was relatively weak given the advanced stage of proceedings and that the plaintiffs established non-compensable prejudice including lost opportunities to plead an estoppel, issue subpoenas, conduct different cross-examination, and potential exposure to criminal liability under s 34(3).
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