Mainteck Services Pty Limited v Stein Heurtey Australia Pty Limited

Mainteck Services Pty Limited (the applicant) sought leave to appeal from a decision of the primary judge who refused its application to amend its defence. The dispute arose in proceedings where a referee had provided an interim report, and subsequently a final report, but this final report had not yet been adopted by the court. The application to amend the defence was made after a hearing before the referee. The appeal was heard by McColl and Basten JJA of the Court of Appeal, Supreme Court of New South Wales.

The central legal issue before the Court of Appeal was whether the primary judge erred in refusing leave to amend the defence, particularly in circumstances where the proposed amendments were sought after the referee had delivered an interim report and subsequently a final report, but before that final report was adopted by the court. This involved considering the principles governing the amendment of pleadings, especially in the context of proceedings involving a referee's report.

The Court of Appeal refused leave to appeal. Their Honours applied the principles governing amendments to pleadings, which generally allow amendments at any stage of the proceedings provided they are necessary for the purpose of determining the real questions in controversy between the parties. However, the court considered the stage of the proceedings, noting that the referee's final report had been provided. The court found that the proposed amendments were not of a nature that would justify intervention at this late stage, particularly given the referee's findings. The court implicitly considered that allowing the amendments would likely cause undue delay and prejudice to the respondent, and that the proposed amendments did not raise issues that were essential for the proper determination of the proceedings at that juncture.

Consequently, the Court of Appeal made orders refusing the applicant leave to appeal and ordering the applicant to pay the respondent's costs of the application.