The borrower defaulted and the bank sued the guarantor. At a very late stage (two years later) the guarantor sought to amend her defence and cross-claim to plead that she had no knowledge of executing the guarantee, and a Contracts Review Act defence.
The court’s power to permit a defence to be amended is qualified by the overriding purpose of the Civil Procedure Act to facilitate just, quick and cheap resolution of the real issues and an explanation for the delay needs to be given.
The court refused to permit the guarantor to further amend her defence. The court noted that the basis of the Contracts Review Act defence had never been raised in any affidavits filed earlier in the proceedings nor in the earlier defences put forward. Further, the court found the guarantor’s explanation entirely inadequate given there was nothing in the medical evidence to suggest she was incapable of giving instructions.
The decision was appealed. The Court of Appeal found no error by the judges refusing the amendment and refusing the stay pending an appeal and said they would in any event have come to the same decision.
The appeal was dismissed.
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