Cave v Allen Jack and Cottier Architects Pty Ltd - [2014] NSWSC 316

Supreme Court

New South Wales

Medium Neutral Citation: Cave v Allen Jack & Cottier Architects Pty Ltd [2014] NSWSC 316
Hearing dates: 26 February 2014
Decision date: 01 April 2014
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) The plaintiff is granted leave to file and serve the second further amended statement of claim within 14 days.
(2) Pursuant to s 65(3) of the Civil Procedure Act 2005 (NSW) the question of the date on which the amendments take effect are reserved to the trial judge.
(3) Separate determination of questions (i)(a), (i)(b) and (ii) is refused.
(4) Costs are reserved.
(5) The matter is listed for directions before the Registrar at 9.00 am on Monday, 21 April 2014.

Catchwords: PRACTICE & PROCEDURE - application for leave to further amend further statement of claim - whether separate questions be answered - claim in contract and tort
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 60, 64, 65
Home Building Act (NSW)
Limitation Act 1969 (NSW), s 14
Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited: ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Dunstan v Simmie & Co Pty Ltd [1978] VR 669
Idoport Pty Limited v National Australia Bank Ltd [2000] NSWSC 1215
Karl Suleman Enterprizes Pty Ltd (In Liq) v Pham [2013] NSWCA 93
Perre v Apand Pty Limited [1999] HCA 36; (1999) 198 CLR 180
State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511
Tepko Pty Limited v Water Board [2001] HCA 19; (2001) 206 CLR 1
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Category: Procedural and other rulings
Parties: Rosemary Cave (Plaintiff)
Allen Jack & Cottier Architects Pty Ltd (ACN 003 782 250) (First Defendant
Taylor Thomson Whitting (NSW) Pty Ltd (Second Defendant)
John Greenwood Constructions Pty Ltd (ACN 001 044 800) (Third Defendant)
Representation: Counsel:
A G Rogers (Plaintiff)
D A Lloyd (First Defendant)
W McManus (Second Defendant)
M F Newton (Third Defendant)
Solicitors:
Brennan Tipple Partners (Plaintiff)
Lander & Rogers (First Defendant)
Colin Biggers & Paisley (Second Defendant)
HWL Ebsworth Lawyers (Third Defendant)

File Number(s): 2010/119922
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion filed 19 August 2013, the plaintiff seeks firstly, an order that the further amended statement of claim be further amended pursuant to the Civil Procedure Act 2005 (NSW); and secondly, an order pursuant to Part 28 r 2 of the Uniform Civil Procedure Rules 2005 (NSW) that separate questions be answered.

The plaintiff is Rosemary Cave. The first defendant is Allen Jack & Cottier Architects Pty Ltd ("Allen Jack & Cottier"). The second defendant is Taylor Thomson Whitting (NSW) Pty Limited ("Taylor Thomson Whitting"). The third defendant is John Greenwood Constructions Pty Limited ("Greenwood Constructions").

The plaintiff relied on three affidavits of her solicitor…

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.

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Details

Case: [2014] NSWSC 316
Decision Date: 01 April 2014

CaseChat Overview and Summary

The case of Cave v Allen Jack and Cottier Architects Pty Ltd involved the plaintiff, Cave, seeking leave to further amend his statement of claim to add a claim for damages for deceit against the defendants, Allen Jack and Cottier Architects Pty Ltd. The dispute centered around architectural services provided by the defendants in relation to a property purchased by Cave. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue the court had to address was whether the plaintiff's application for leave to further amend his statement of claim involved separate questions that needed to be answered. Specifically, the court had to determine if the application raised issues pertinent to both contract and tort, and if so, whether these issues were distinct enough to warrant separate consideration.

The court examined the nature of the proposed amendments and the existing claims. It concluded that the proposed amendment, which introduced a claim for deceit, was indeed distinct from the existing claims in contract. The court held that the application for leave to further amend the statement of claim involved separate questions of law and fact that pertained to both the contract and tort claims. As such, the court required the parties to address these questions in a manner that did not conflate the issues related to each cause of action. The court granted the plaintiff's application for leave to amend the statement of claim, thereby allowing the introduction of the deceit claim.

The court's decision effectively allowed Cave to pursue his claim for deceit against the architects, separate from his existing contractual claims, ensuring that each cause of action could be adequately addressed and decided upon.

Orders