SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | McKenna v JWLand Construction Pty Ltd |
Citation: | [2025] ACTSC 315 |
Hearing Date: | 4 July 2025, 11 July 2025 |
Decision Date: | 21 July 2025 |
Before: | Muller AJ |
Decision: | (1) The plaintiff is granted leave to file a second further amended originating claim within 14 days from the date of this order; (2) The plaintiff is granted leave to file a second further amended statement of claim, in the form of Annexure M to the affidavit of Angela Omari sworn on 9 July 2025, within 14 days from the date of this order; (3) Each party is to bear its own costs of the application. |
Catchwords: | CIVIL LAW – PRACTICE AND PROCEDURE – application to amend claim – amending application brought after limitation period on claim expired – mistaken belief in identity of occupier – whether substitution available under r 503 – leave to amend granted |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), ch 5, s 51 Court Procedures Rules 2006 (ACT), rr 220, 230, 242, 502, 503, 504 Limitation Act 1985 (ACT), ss 16A, 16B |
Cases Cited: | Beta ACT Pty Ltd as Trustee for the Brendas Family Trust v FTI Consulting Pty Ltd [2021] ACTSC 293 Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; 173 CLR 231 Brown v Jammal [1995] NSWCA 62 Cooke v Rixon [2016] ACTSC 236 Davies v Barancewicz [2011] ACTSC 166 Greenwood v Papademetri [2007] NSWCA 221 Prichard v Honeywell Limited & Colliers International (ACT) Pty Ltd [2024] ACTSC 352 Rees-Wlodek v Calvary Healthcare ACT Limited [2025] ACTSC 162 The Owners – Units Plan No 4312 v Project Coordination Australia Pty Ltd [2025] ACTSC 110 |
Parties: | John Mckenna ( Plaintiff) JWLand Construction Pty Ltd ( Defendant) Vantage Strata Pty Ltd (First Potential Defendant) The Owners - Units Plan No 15367 (Second Potential Defendant) Altair No.1 Pty Ltd (First Third Party) Enliven Housing Pty Ltd (Second Third Party) J & M McKenna Pty Ltd (Third Third Party) Safeguard Home Improvements Pty Ltd T/As Wynstan Commercial (Fourth Third Party) |
Representation: | Counsel D Steiner ( Plaintiff) L Cassidy ( Defendant) No appearance (First Potential Defendant) K Yeung (Second Potential Defendant) |
| Solicitors Gerard Malouf & Partners ( Plaintiff) Clyde & Co ( Defendant) No appearance (First Potential Defendant) Gilchrist Connell (Second Potential Defendant) | |
File Number: | SC 60 of 2024 |
MULLER AJ:
Introduction
1․The plaintiff alleges that he suffered injury on 4 April 2022 when he tripped and fell over a plastic-wrapped pack of building materials located in a pedestrian walkway at a construction site. A new building had been erected at the site, at 61-65 Cooyong Street in Braddon, ACT (the property), and construction was at or near completion. The plaintiff was at the site in the course of his work as a consultant project manager/window covering installer.
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- Case
- [2025] ACTSC 315
- Decision Date
CaseChat Overview and Summary
The court's analysis focused on whether the plaintiff's mistaken belief about the identity of the occupier could be corrected through an amendment, even after the limitation period had passed. The court examined whether the proposed amendment fell within the permissible scope under the rules of court and whether the plaintiff's mistaken belief could be considered a sufficient ground for allowing the amendment. The court also considered whether the plaintiff could substitute the party named in the original claim under rule 503. Ultimately, the court found that the plaintiff's mistaken belief warranted the amendment and that substitution under rule 503 was permissible in this instance.
The court granted the plaintiff leave to file a second further amended originating claim and a second further amended statement of claim. The court ruled that the plaintiff could correct the mistaken belief regarding the identity of the occupier, despite the limitation period having expired. The court also found that substitution under rule 503 was appropriate, allowing the plaintiff to amend the claim. Each party was ordered to bear its own costs of the application.
Orders
Orders of the court
(1) The plaintiff is granted leave to file a second further amended originating claim within 14 days from the date of this order;
(2) The plaintiff is granted leave to file a second further amended statement of claim, in the form of Annexure M to the affidavit of Angela Omari sworn on 9 July 2025, within 14 days from the date of this order;
(3) Each party is to bear its own costs of the application.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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