Loulach Developments Pty Ltd v Roads and Maritime Services - [2018] NSWSC 1402

Supreme Court

New South Wales

Medium Neutral Citation: Loulach Developments Pty Ltd v Roads and Maritime Services [2018] NSWSC 1402
Hearing dates: 11 September 2018
Decision date: 11 September 2018
Jurisdiction: Common Law
Before: Leeming JA
Decision:
1. The defendant be granted leave to file an amended defence in the form annexed to the notice of motion filed 6 September 2018 within seven days of today.
2. The plaintiff/respondent pay the costs of the defendant/applicant of the notice of motion filed 6 September 2018.
Catchwords: PRACTICE – amendment – late application to amend defence – applicant gave unchallenged explanation for delay while respondent pointed to no evidence of prejudice – application granted
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-58
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Category: Consequential orders (other than Costs)
Parties: Loulach Developments Pty Ltd (Plaintiff/Respondent)
Roads and Maritime Services (Defendant/Applicant)
Representation:
Counsel:
T Hale SC (Plaintiff/Respondent)
N Kidd SC (Defendant/Applicant)
Solicitors:
Madison Marcus (Plaintiff/Respondent)
Makinson d’Apice Lawyers (Defendant/Applicant)

File Number(s): 2015/167414
Publication restriction: Nil

ex tempore Judgment

HIS HONOUR: Before me is a contested application to amend a defence filed so long ago as 30 September 2015. The amendment is simple. In addition to deleting an allegation based upon the proportionate liability legislation, the defendant seeks to add proposed paragraph 68 which is in the following terms:

“The defendant says, further, that any cause of action in negligence accrued more than six years before the commencement of these proceedings and is statute barred pursuant to s 14(1)(b) of the Limitation Act 1969."

The essential chronology for present purposes is that the plaintiff has brought proceedings by statement of claim filed on 5 June 2015, shortly before the expiration of six years following a grant of development consent to a building in Parramatta, which consent, the plaintiff claims, has been affected by what it says is erroneous advice provided to the consent authority by the predecessor to the defendant, Roads and Maritime Services, some time beforehand.
The opposition to the amendment is three-fold. First, it is said, and with some force, that the amendment is being made some three years after the statement of claim was filed, and only seven or so weeks before the trial, and that the explanation proffered by the defendant is lacking in detail and cogency. Secondly, although there has been the provision of particulars, explaining how it is said that damage was incurred more than six years before the commencement of proceedings, the plaintiff says that some aspects of that explanation are insufficiently clear for it to understand the case it has to meet should the amendment be allowed. Thirdly, and this is the plaintiff’s principal point, it is said that permitting the amendments will cause the plaintiff to suffer prejudice, in so far as decisions have been made throughout the litigation to date on the basis that no limitation point is made by the defendant.
The unchallenged evidence of the solicitor with day-to-day conduct of the matter on…

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.

Keep reading for free

Create a free CaseChat account to read Loulach Developments Pty Ltd v Roads and Maritime Services and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 1402
Decision Date: 11 September 2018

CaseChat Overview and Summary

Loulach Developments Pty Ltd sought to enforce an adjudicator's decision against Roads and Maritime Services. The dispute centred on whether the Roads and Maritime Services' defence was validly amended after the deadline. Loulach sought leave to amend its defence after the deadline, citing unforeseen circumstances as the reason for the delay. Roads and Maritime Services opposed the application, arguing that the amendment was prejudicial to their case. The court had to determine whether the late application to amend the defence should be allowed, considering the balance between the applicant's explanation for the delay and the respondent's claim of prejudice.

The court examined the factors relevant to the application, including the nature of the amendment, the reason for the delay, and whether the respondent would be prejudiced if the amendment was allowed. Loulach provided an explanation for the delay, which was not challenged by Roads and Maritime Services. Roads and Maritime Services did not provide any evidence to demonstrate that it would be prejudiced by the amendment. The court noted that the amendment sought to add a new defence that was not fundamentally different from the existing defence. The court concluded that the balance of convenience favoured allowing the amendment, as there was no evidence of prejudice to the respondent.

The court granted the application to amend the defence, emphasising the importance of the party's explanation for the delay and the lack of evidence of prejudice to the respondent. The court considered it appropriate to allow the amendment to ensure a fair determination of the dispute. The court ordered that the amended defence be allowed and that the case proceed on the basis of the amended defence. The court also noted that the decision should not be taken as a precedent for future cases, as each case would depend on its own circumstances.

Orders