McKenna v JWLand Construction Pty Ltd - [2025] ACTSC 315

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 Brando Aus Holdo Pty Ltd v Gary Shayne as representative of the persons identified in Schedule 1 [2021] NSWSC 998 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 Woden Valley Glass v Psaila (1993) 44 FCR 140
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.

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.

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Details

Case: [2025] ACTSC 315
Decision Date: 21 July 2025

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of McKenna v JWLand Construction Pty Ltd involved a dispute concerning an application to amend a claim after the limitation period had expired. The plaintiff sought to amend the claim to correct a mistaken belief about the identity of the occupier of a property. The defendant contested the application on the grounds that the amendment was beyond the permissible scope of what could be allowed post-expiry of the limitation period. The court had to determine whether the amendment was permissible under the rules and whether the plaintiff could substitute a party under rule 503.

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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