Concrib Pty Ltd v Cumner Contracting - [2022] QSC 50

SUPREME COURT OF QUEENSLAND

CITATION:

Concrib Pty Ltd v Cumner Contracting [2022] QSC 50

PARTIES:

Concrib Pty Ltd

(respondent)

v

Cumner Contracting

(applicant)

FILE NO/S:

SC No 7251 of 2020

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:
Supreme Court of Queensland

DELIVERED EX-TEMPORE ON:

22 March 2022

DELIVERED AT:

Brisbane

HEARING DATES:

21, 22 March 2022

JUDGE:

Henry J

ORDER:

1.    The Defendant have leave pursuant to Rule 188 to withdraw such admissions as are contained in its defence filed 7 September 2020 to permit the filing of its amended defence filed 22 October 2021.

2.    The Claim be amended pursuant to Rule 377 to reflect that the name of the Defendant is Cumner Contracting Pty Ltd.

3.    The Defendant pay the Plaintiff’s costs of meeting the application to be assessed on the standard basis.

CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – LEAVE TO WITHDRAW ADMISSIONS – where the defendant, the operator of the quarry supplied rocks to the plaintiff to be used in a residential development in a gabion wall – where the rocks allegedly started to weather and disintegrate – where the whole structure was replaced – where the plaintiff commenced a proceeding against the defendant for damages for breach of contract, negligence or misleading and deceptive conduct – where the defendant made application for leave to withdraw four admissions contained in its defence – where a proposed amended defence was sent to the plaintiff who did not respond – where the plaintiff later advised the defendant leave was required by the court to withdraw the admissions – where the defendant also made an oral application to amend its name in the claim – whether leave to withdraw admissions pursuant to r 188 of the Uniform Civil Procedure Rules (Qld) 1999 should be granted in all of the circumstances

Uniform Civil Procedure Rules 1999 (Qld), r 188

Hanson Construction Materials Pty Ltd v Norlis [2010] QSC 34, cited

Rigato Farms v Ridolfi [2000] QCA 292, cited

COUNSEL:
G Radcliff for the applicant/defendant

D Williams for the respondent/plaintiff

SOLICITORS:
Legacy Legal for the applicant/defendant

Mills Oakley for the respondent/plaintiff

HIS HONOUR: The defendant to a claim in the Supreme Court applies for leave, pursuant to rule 188 Uniform Civil Procedure Rules 1999 to withdraw four admissions contained in its defence.

The defendant, the operator of a quarry, supplied rocks to the plaintiff, a constructor of retaining walls and erosion control systems. The rocks were used at a residential development in a gabion wall structure, a gabion being a cage filled with rocks. The structure was evidently intended as a hydrological system to cascade stormwater runoff in order to prevent erosion. The rocks allegedly started to weather and disintegrate, and in the end result, the structure was wholly replaced, allegedly resulting in a loss of $752,118.38. That amount is claimed by the plaintiff as damages for breach of contract, negligence or misleading or deceptive conduct.

The claim was filed…

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.

Continue reading Concrib Pty Ltd v Cumner Contracting

Details

AGLC: Concrib Pty Ltd v Cumner Contracting [2022] QSC 50
Case: [2022] QSC 50
Decision Date: 22 March 2022

CaseChat Overview and Summary

Concrib Pty Ltd (the plaintiff) brought an action against Cumner Contracting (the defendant) seeking damages for the breach of contract, negligence, and misleading and deceptive conduct. The plaintiff alleged that rocks supplied by the defendant for use in a gabion wall of a residential development had weathered and disintegrated, necessitating the replacement of the entire structure. The defendant had made admissions in its defence that the plaintiff sought to rely on. However, the defendant later sought leave to withdraw these admissions and file an amended defence.

The court had to determine whether the defendant should be granted leave to withdraw its admissions under Rule 188 of the Uniform Civil Procedure Rules (Qld) 1999. The court considered the reasons for the delay in seeking leave, the extent of any prejudice to the plaintiff if the admissions were withdrawn, and whether the application was made in good faith. The court also needed to decide whether the plaintiff's lack of response to the proposed amended defence was sufficient to grant leave and whether the defendant's oral application to amend its name in the claim should be granted.

The court found that the defendant's delay in seeking leave was not inordinate, and that the plaintiff had not suffered any prejudice as a result of the delay. The court also found that the application was made in good faith, and that the plaintiff's lack of response to the proposed amended defence was sufficient to grant leave. The court further found that the defendant's oral application to amend its name in the claim should be granted as it was a clerical error. The court therefore granted the defendant leave to withdraw its admissions and file an amended defence, and ordered that the claim be amended to reflect the correct name of the defendant. The defendant was also ordered to pay the plaintiff's costs of meeting the application.

Orders

Orders of the court

1. The Defendant have leave pursuant to Rule 188 to withdraw such admissions as are contained in its defence filed 7 September 2020 to permit the filing of its amended defence filed 22 October 2021.

2. The Claim be amended pursuant to Rule 377 to reflect that the name of the Defendant is Cumner Contracting Pty Ltd.

3. The Defendant pay the Plaintiff’s costs of meeting the application to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Concrib Pty Ltd v Cumner Contracting [2022] QSC 50
PARTIES:	Concrib Pty Ltd (respondent) v Cumner Contracting (applicant)
FILE NO/S:	SC No 7251 of 2020
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED EX-TEMPORE ON:	22 March 2022
DELIVERED AT:	Brisbane
HEARING DATES:	21, 22 March 2022
JUDGE:	Henry J
ORDER:	1. The Defendant have leave pursuant to Rule 188 to withdraw such admissions as are contained in its defence filed 7 September 2020 to permit the filing of its amended defence filed 22 October 2021. 2. The Claim be amended pursuant to Rule 377 to reflect that the name of the Defendant is Cumner Contracting Pty Ltd. 3. The Defendant pay the Plaintiff’s costs of meeting the application to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – LEAVE TO WITHDRAW ADMISSIONS – where the defendant, the operator of the quarry supplied rocks to the plaintiff to be used in a residential development in a gabion wall – where the rocks allegedly started to weather and disintegrate – where the whole structure was replaced – where the plaintiff commenced a proceeding against the defendant for damages for breach of contract, negligence or misleading and deceptive conduct – where the defendant made application for leave to withdraw four admissions contained in its defence – where a proposed amended defence was sent to the plaintiff who did not respond – where the plaintiff later advised the defendant leave was required by the court to withdraw the admissions – where the defendant also made an oral application to amend its name in the claim – whether leave to withdraw admissions pursuant to r 188 of the Uniform Civil Procedure Rules (Qld) 1999 should be granted in all of the circumstances Uniform Civil Procedure Rules 1999 (Qld), r 188 Hanson Construction Materials Pty Ltd v Norlis [2010] QSC 34, cited Rigato Farms v Ridolfi [2000] QCA 292, cited
COUNSEL:	G Radcliff for the applicant/defendant D Williams for the respondent/plaintiff
SOLICITORS:	Legacy Legal for the applicant/defendant Mills Oakley for the respondent/plaintiff