Hi-Tec Windows Pty Ltd v Capital Territory Fixing Pty Ltd

[2024] NSWSC 306

Supreme Court

New South Wales

Medium Neutral Citation:	Hi-Tec Windows Pty Ltd v Capital Territory Fixing Pty Ltd [2024] NSWSC 306
Hearing dates:	22 March 2024
Date of orders:	22 March 2024
Decision date:	22 March 2024
Jurisdiction:	Equity - Technology and Construction List
Before:	Stevenson J
Decision:	Leave to withdraw admission granted on terms
Catchwords:	CIVIL PROCEDURE – admissions – withdrawal – leave to withdraw admission made in pleadings – whether the admission was contrary to the facts
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW)
Cases Cited:	In the matter of Dymocks Book Arcade Pty Limited [2013] NSWSC 298
Category:	Procedural rulings
Parties:	Hi-Tec Windows Pty Ltd (Plaintiff/Respondent) Capital Territory Fixing Pty Ltd (First Defendant/Applicant)
Representation:	Counsel: L Holland (solicitor) (Plaintiff/Respondent) E A Walker / J Pokoney (First Defendant/Applicant) Solicitors: Eakin McCaffery Cox Lawyers (Plaintiff/Respondent) Praxis Lawyers Pty Ltd (First Defendant/Applicant)
File Number(s):	2023/455228

EX TEMPORE JUDGMENT (REVISED)

1. In these proceedings the plaintiff seeks to have an adjudication determination made under the Building and Construction Industry Security of Payment Act 1999 (NSW) set aside.

2. The matter is listed for hearing on 3 April 2024.

3. One basis upon which the plaintiff seeks to have the adjudication determination set aside is that it is alleged that the relevant adjudication application was made without the consent of the first defendant’s administrator.

4. Thus, in the List Statement, it is alleged at par C10 that:

“The Adjudication Application was not:

…

(b) made, lodged or prepared with the prior written consent of the Administrator.”

5. By its current List Response, the first defendant admits this allegation.

6. By Notice of Motion filed on 19 March 2024, the first defendant seeks to withdraw that admission on the basis that it was made by mistake and, it is said, is contradicted by an email exchange between the administrator and Mr O’Reilly, who is a director of the first defendant, on 5 November 2023 (the day before the adjudication application was made) as follows:

“[Mr O’Reilly]: My adjudication application for ‘Hi-Tec Windows’ is ready to submit, the 10 business day timeframe for ‘the claimant’ to submit after receipt of a payment schedule which expires on Wednesday the 8th of November.

…

Do I have your blessing to proceed with the above?

[Mr Pullen]: Thank you for the update. Please proceed on each of those as proposed, except for the ADCO invoice.”

7. The first defendant wishes to argue that this email exchange shows that in fact the first defendant did have the administrator’s consent, at least to the filing of an adjudication application if not for “the” adjudication application referred to in the plaintiff’s List Statement.

8. The Court is usually cautious about allowing a party to withdraw an admission made deliberately and after legal advice has been given, as appears to have been the case here. The explanation given by the solicitor for the first defendant is that the relevant email was overlooked. It is usually appropriate to grant leave to withdraw an admission where the admission is, or at least appears to be, contrary to the facts. ^[1]

   1. See In the matter of Dymock’s Book Arcade Pty Limited [2013] NSWSC 298 at [8]-[9] (Brereton J).

9. Ms Holland, who appears for the plaintiff, pointed to the imminence of the hearing date, and the need for the plaintiff to deal with the first defendant’s revised position were the admission permitted to be withdrawn.

10. There is some substance to that submission, but my conclusion is that it can be dealt with by making directions to protect the plaintiff’s position.

11. I propose to allow the first defendant to withdraw the admission, but on the basis that the defendant in its List Response identifies precisely the passages from the email exchange to which I have referred upon which it relies to show that the relevant consent was given.

12. I also propose to grant the plaintiff leave to serve on the first defendant a notice to produce directed to the question of what Mr O’Reilly was referring to in his email when he referred to “my adjudication application”.

13. In the circumstances, I make the following orders:

1. Grant leave to the first defendant to amend its List Response to withdraw the admission in par C10 but on the basis that it pleads with precision the basis on which it contends that it had the consent of its administrator to file the adjudication application the subject of the proceedings including by reference to the email exchange between Mr O’Reilly and Mr Pullen on 5 November 2023.

2. Direct the first defendant to file its amended List Response by 5pm 25 March 2024.

3. Grant the plaintiff leave to serve a Notice to Produce on the first defendant by 5pm on 22 March 2024 directed to the question of the reference to “my adjudication application” in the email exchange referred to at Order (1).

4. Note the parties will confer and agree as to the manner in which the Notice to Produce is to be responded to.

5. The first defendant to pay the costs thrown away by the proposed amendment to its List Response, including the costs of the first defendant’s Notice of Motion of 19 March 2024.

6. Liberty to apply on short notice.

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