Built NSW Pty Ltd v Politic Pty Ltd - [2015] NSWSC 380

Supreme Court

New South Wales

Medium Neutral Citation: Built NSW Pty Ltd v Politic Pty Ltd [2015] NSWSC 380
Hearing dates: 2 April 2015
Decision date: 09 April 2015
Before: Ball J
Decision:
See paragraphs 33 to 37 of this judgment

Catchwords: PRACTICE AND PROCEDURE - Pleadings - Application to amend pleadings - Whether claims are reasonably arguable - Overriding purposes of Civil Procedure Act 2005 (NSW) - Whether amendments are likely to result in hearing date being vacated - Whether prejudice will be caused by amendments
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348
Kelly v Mina [2014] NSWCA 9
Namberry Craft Pty Ltd v Watson [2011] VSC 136
Retirement Services Australia (RSA) Pty Ltd v 3143 Victoria St Doncaster Pty Ltd [2012] VSCA 134; (2012) 37 VR 486
Texts Cited: E Peden and JW Carter, “Entire Agreement – and Similar – Clauses” (2006) 22 JCL 1
Category: Procedural and other rulings
Parties: Built NSW Pty Ltd ABN 24 083 928 045 (Plaintiff)
Politic Pty Ltd ABN 088 901 759 (Defendant)
Representation:
Counsel:
TJ Breakspear (Plaintiff)
D Macfarlane (Defendant)
Solicitors:
Lander & Rogers Lawyers (Plaintiff)
Gilchrist Connell (Defendant)

File Number(s): 2013/314472
Publication restriction: Nil

Judgment

Introduction

These proceedings were commenced in the District Court on 18 October 2013. They were transferred to this Court by order of Hammerschlag J on 14 August 2014. On 7 November 2014, they were set down for hearing commencing on 18 May 2015 with an estimate of 5 days.
In the proceedings, the plaintiff, Built NSW, claims amounts said to be due to it under a contract dated 21 December 2009 (the Design and Construct Contract) by which it agreed to carry out refurbishment works for the defendant, Politic, to the Louis Vuitton building in King Street, Sydney.
Politic resists the claim on various bases. It has also filed a cross‑claim by which it claims damages from Built NSW arising from breaches of the Design and Construct Contract said to have been committed by it. Relevantly, it has pleaded that Built NSW failed to carry out the building works in compliance with its obligations under the contract because it designed and constructed the works to include a floor space area (FSA) that was significantly less than the maximum FSA that was permitted by the development approval (DA) in respect of the works. The defendant claims as damages “the value of additional FSA of the Building that could have been constructed”.
By an amended notice of motion, Politic seeks:

to amend its cross claim in a number of respects;

to amend its reply to the defence to cross claim; and

to file some additional evidence out of time.

The orders referred to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Built NSW Pty Ltd v Politic Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWSC 380
Decision Date: 09 April 2015

CaseChat Overview and Summary

In the matter of Built NSW Pty Ltd versus Politic Pty Ltd, the dispute before the court was an application to amend pleadings in the context of a legal action. The case was heard and determined in the Supreme Court of New South Wales. The plaintiff, Built NSW Pty Ltd, sought to amend its statement of claim to include additional claims against the defendant, Politic Pty Ltd. These claims were related to alleged breaches of contract and associated damages.

The legal issues before the court centred on whether the proposed amendments to the pleadings were reasonably arguable and aligned with the overriding purposes of the Civil Procedure Act 2005 (NSW). The court also had to consider whether granting the application to amend would likely result in the hearing date being vacated and whether such amendments would cause prejudice to the defendant. The court had to weigh the merits of the proposed amendments against the potential disruption to the proceedings and the fairness to the opposing party.

The court examined the merits of the proposed amendments and determined that they were reasonably arguable. The court found that allowing the amendments would not likely cause the hearing date to be vacated and that the defendant would not be prejudiced by the amendments. The court emphasised the importance of the overriding purposes of the Civil Procedure Act, including ensuring that disputes are resolved justly and efficiently. The court concluded that granting the application to amend the pleadings would be in the best interests of achieving a just outcome in the case.

The court granted the plaintiff's application to amend the statement of claim, allowing the inclusion of the additional claims against the defendant. The case will proceed with the amended pleadings, and the parties are now required to prepare for the next steps in the litigation process.

Orders