master prowse

1.4: Procedural orders
3.62: Amending pleading

Case Summary

The Plaintiff, Canexus applied to amend its Statement of Claim to particularize certain facts already pleaded, and include claims relating to consequential losses it alleged were suffered as a result of the Defendant’s conduct (“Consequential Loss Amendments”). The original Statement of Claim simply requested “damages in an amount to be proven at Trial”. The Defendant resisted the amendments on the basis that there was insufficient evidence, and the entire Claim was hopeless.

Master Prowse found that most of the requested amendments required no evidence and they merely particularized facts already pleaded. Master Prowse also found that the Consequential Loss Amendments were particularizations of the damages and not “new substantive facts” requiring evidence in support. In the alternative, Master Prowse held that the Plaintiff’s Affidavit provided sufficient evidence to support the amendments, noting the low evidentiary threshold required.

Master Prowse held that the Defendant was effectively trying to convert the Amendment Application to a Summary Dismissal Application by arguing that the amendments were hopeless because the entire Claim was hopeless. Master Prowse noted that the Defendant had no evidence to support Summary Dismissal, “let alone evidence that the claim of Canexus was highly likely to fail (which is the onus of proof required for summary dismissal)”. The Plaintiff’s Application to amend its Statement of Claim was allowed.

The Defendant cross-applied for a Stay of the amended Claims which it claimed were inextricably linked to an Arbitration which was underway between the parties. Master Prowse dismissed this Application on the basis that the Defendant failed to demonstrate that the Arbitration would answer any of the issues raised in the Plaintiff’s Amended Claim. The Defendant also applied for a Stay of the Decision pending Appeal on the basis that as a public company, it would be compelled to disclose the amount of the Amended Claim pursuant to its reporting obligations. Master Prowse dismissed this Application on the basis that the grounds opposing the amendment were “extremely weak” and that, not only did the Defendant produce no evidence pertaining to the actual effect of the Decision on the Defendant’s reporting obligations, but also that “it is very unwise for the Court to involve itself in ‘live’ reporting issues”. The Defendant’s Cross-Applications to Stay the Claim were dismissed.

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