Devine Constructions Pty Ltd v Stowe Australia Pty Ltd (No 2)

The case of Devine Constructions Pty Ltd v Stowe Australia Pty Ltd (No 2) involved a dispute between Devine Constructions and Stowe Australia, concerning the admissibility of a further amended statement of claim filed by the plaintiff. The legal issues that came before the court were whether the court should order that the amendments to the statement of claim should start only when the court granted leave to file the further amended statement of claim and whether the new causes of action arose out of the same or substantially the same facts as a cause of action for which relief had already been claimed. Additionally, the court had to consider whether the first defendant would suffer prejudice if the court refused to make the orders sought.

The court held that the possibility of the first defendant being deprived of limitation defences was not sufficient to persuade the court to make the order it sought. The court referred to the decision in Menegazzo v Pricewaterhousecoopers (A Firm) & Ors, where it was noted that if amendments which include a new cause of action and which satisfy the requirements of r 376(4)(b) are appropriate, they do not cease to be appropriate because they would overcome what otherwise would be a relevant period of limitation. The court concluded that the First Respondent's request for orders should be declined.

In addition to declining the orders sought by the First Respondent, the court also noted that there was an error in the orders made on 23 November 2022. The court varied order 2 of its orders dated 23 November 2022 to extend the time for compliance with Order 2(a) of the orders of Justice Applegarth dated 9 May 2022 to 28 September 2022.

In summary, the court declined to make the orders sought by the First Respondent and varied the orders made on 23 November 2022 to correct an error.