Michael Williams v ATM and CPA Projects Pty Limited - [2014] NSWSC 1451

Supreme Court

New South Wales

Medium Neutral Citation: Michael Williams v ATM & CPA Projects Pty Limited [2014] NSWSC 1451
Hearing dates: 21 October 2014
Decision date: 21 October 2014
Jurisdiction: Equity Division - Commercial List
Before: Bergin CJ in Eq
Decision:
Leave granted to the plaintiffs to amend the Commercial List Statement and the Summons.

Catchwords: [PRACTICE AND PROCEDURE] - where contract drafted by parties - whether plaintiffs' claim in proposed amendments untenable
Category: Interlocutory applications
Parties: Michael Williams (1st Plaintiff)
Graham Morison (2nd Plaintiff)
Solglen Pty Ltd ACN 002 376 481 (3rd Plaintiff)
ATM & CPA Projects Pty Limited ACN 116 458 407 (1st Defendant)
Tony Merhi (2nd Defendant)
Representation: Counsel:
DS Weinberger (Plaintiffs)
JD Simpkins SC (Defendants)
Solicitors:
Gillis Delaney (Plaintiffs)
Madison Marcus Law Firm (Defendants)

File Number(s): 2014/145135
Publication restriction: Nil

Judgment - EX TEMPORE

There are two applications before the Court. The first is by the plaintiffs to amend their Summons and Commercial List Statement. The second is the defendants' application to strike out aspects of the pleading.

The general rule in the Commercial List is that the Court does not entertain strike out applications. Paragraph 62 of the Commercial List Practice Note indicates to the parties that they should expect strictness in declining such applications. However, the parties have embarked upon the process of trying to settle the pleadings, unfortunately over a period of some weeks.

Evidence has been filed by the parties; a Court Book has been prepared and a special fixture was set down today for hearing of the competing motions. Sensibly, Mr Weinberger for the plaintiffs, and Mr Simpkins SC for the defendants, have agreed that the application should proceed on the basis that if leave is not granted to the plaintiffs to amend then the previous pleading would be struck out. This obviated the need for much of the material to be read.

The only document in evidence is the agreement between the parties which was in the following terms:

Dear Tony,

As you are aware, we have both been working for some time to bring the James Street project to fruition.

Now that the issue by Council of a formal Development Approval has been received, it is appropriate to set out formally the basis under which we have been working together.

You are prepared to sell the completed, strata titled project on the following terms:

● Purchase of site with Development Approval $13,780,000

with all fees paid $13,000,000.00

Section 94 and Council contributions $553,190.00

Professional Fees and costs to Construction

Certificate and costs of Strata Title $400,000.00

Building construction and handover $26,250,000.00

TOTAL COST $40,203,190.00

$40,983,190.00

Payment of the $40,203,190.00 will be in stages under two separate but interlinked contracts. Purchase of the site will be under one contract and will be paid for at contract commencement. Section 94 and Council contributions and costs to Construction Certificate will be payable under the second contract for building construction and handover at Construction Certificate issue and building and Strata Title costs…

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: [2014] NSWSC 1451
Decision Date: 21 October 2014

CaseChat Overview and Summary

In the matter of Michael Williams versus ATM and CPA Projects Pty Limited, the case was heard in the Supreme Court of Victoria. Michael Williams, the plaintiff, initiated legal proceedings against ATM and CPA Projects Pty Limited, the defendant, seeking compensation for damages incurred during a construction project. The dispute arose from a contractual agreement between the parties, with the plaintiff alleging that the defendant failed to adhere to the terms and conditions outlined in the contract. The plaintiff sought to amend the statement of claim to include additional claims, which the defendant contested on the grounds that the proposed amendments would fundamentally alter the nature of the case.

The primary legal issue that the court had to address was whether the plaintiff's proposed amendments to the statement of claim were permissible under the rules of court and whether the amendments would result in the plaintiff's claims becoming untenable. The court was required to consider the principles of procedural fairness and the overarching objective of the Supreme Court's rules to facilitate the just, quick, and cheap resolution of the real issues in the proceedings.

The court held that the proposed amendments sought by the plaintiff would indeed fundamentally alter the nature of the case and potentially prejudice the defendant. The court reasoned that allowing such amendments would not align with the procedural fairness and the objective of ensuring that the proceedings are resolved in a manner that is just, quick, and cheap. The court found that the plaintiff's proposed amendments were not permissible, as they would significantly change the case's scope and potentially compromise the defendant's ability to mount an adequate defence. Consequently, the court dismissed the plaintiff's application to amend the statement of claim. The court's decision was based on the principles of procedural fairness and the overarching objective of the Supreme Court's rules, which aim to ensure that the proceedings are resolved in a manner that is just, quick, and cheap.

Orders