D.J. & M.A. Hose Pty Ltd ATF the Hose Family Trust ACN 010 999 210 v Wide Bay Insurance Broking Pty Ltd ATF the Wide Bay Business Trust ACN 130 391 301

D.J. & M.A. Hose Pty Ltd, trading as Hose Family Trust, brought a claim against Wide Bay Insurance Broking Pty Ltd, trading as Wide Bay Business Trust, alleging negligence, breach of contract, and breach of statutory duties in relation to insurance broking services. The plaintiff claimed damages for costs incurred in rectifying asbestos contamination on a site, which arose from asbestos-contaminated landfill imported by the plaintiff under an asbestos remediation contract. The defendant raised a defence of proportionate liability, arguing that the contamination was caused by a third-party landfill provider and thus, the defendant should not bear sole responsibility for the plaintiff's rectification costs. The plaintiff sought to have this defence struck out on the basis that it was "manifestly hopeless".

The court was required to determine two main issues: whether the proportionate liability defence was "manifestly hopeless", and whether the defendant and the third-party landfill provider were concurrent wrongdoers. The court examined the "General Steel" test to assess the viability of the defence, considering whether there was another party whose acts or omissions also caused the damage. The court found that the third-party landfill provider's actions contributed to the contamination, thus making the defence arguable. The court also considered the principles governing the withdrawal of admissions under rule 188 of the Uniform Civil Procedure Rules, assessing factors such as the nature of the admissions, the reason for the delay in applying to withdraw them, and the prejudice to the opposing party.

The court concluded that the proportionate liability defence was not "manifestly hopeless" and dismissed the plaintiff's application to strike it out. Regarding the defendant's application to withdraw admissions, the court found that the defendant had provided sufficient evidence to show that the deemed admissions were unintentional due to non-compliance with pleading requirements. The court also considered the defendant's proposed amended defence, which properly addressed the allegations in question. The court granted the defendant leave to withdraw certain deemed and express admissions, as the evidence supported the application and the plaintiff had not demonstrated significant prejudice.

The court ordered that the strike out application in respect of paragraph 55 of the defence be dismissed, and granted leave to the defendant to withdraw specific deemed and express admissions made in its defence.