Morgan v Owners of Strata Plan 13937

[2005] NSWSC 1305

CITATION:	Morgan v Owners of Strata Plan 13937 & anor [2005] NSWSC 1305
HEARING DATE(S):	21-24 November 2005
JUDGMENT DATE :	23 November 2005
JUDGMENT OF:	Brereton J

CATCHWORDS:	PROCEDURE - Amendment - late amendment of pleading during trial - whether triable case on proposed new particular - application rejected
PARTIES:	Thomas Patrick Morgan (plaintiff) The Owners Strata Plan No 13937 (first defendant) Dennis Hales Strata Plan Management Pty Limited (second defendant)
FILE NUMBER(S):	SC 20049/03
COUNSEL:	T D F Hughes (plaintiff) A D M Hewitt SC (defendants)
SOLICITORS:	G H Healey & Co - Ashfield (plaintiff) Curwood & Partners (defendants)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Brereton J

Wednesday 23 November 2005

20049/03 Thomas Patrick Morgan v The Owners Strata Plan No 13937 & Anor

JUDGMENT - (on application for leave to amend Statement of Claim; see p 194 of the transcript) (ex tempore – revised 21 December 2005)

1 HIS HONOUR: Mr Hughes applies for leave to further amend the amended Statement of Claim by adding a particular to the effect of "using inappropriate products, namely, products identified as unsafe or inappropriate in the relevant Australian Standard for the purposes of cleaning the tiles on the landing".

2 This application is made towards the end of the plaintiff's case. Although it is suggested that it is embraced in some of the more general particulars of negligence already pleaded, I am afraid I do not take it to be so embraced. So-called particulars of "failure to take any adequate precaution for the safety of the plaintiff", "exposing the plaintiff to a risk of injury which could have been avoided by reasonable care” or “failure to ensure that the access area through the doorway was safe for use by the plaintiff" are, in fact, not particulars at all, they are simply different ways of explaining an allegation of negligence without particularising how the defendant's conduct in the instant case was negligent.

3 That in itself is not necessarily a reason to refuse an application to add a particular at this stage, were that particular reasonably arguable on evidence which had emerged in the course of the case to date. However, at this stage, no evidence has been identified which would show, or tend to show, that inappropriate cleaning materials had been used on the landing or on the tiles. It is suggested that such an inference could be drawn from a chain of correspondence, part of which has been tendered but mostly, to this point, rejected. I have reviewed that chain of correspondence so far as it has been tendered, and while it is true that it shows or may show a level of dissatisfaction with the standard of cleaning services within the building, it does not begin to show that that dissatisfaction had anything to do with the particular materials being used, let alone that the materials listed in the Australian Standard as unsafe or inappropriate were being used.

4 On the material before me there is not a triable case on the proposed additional particular, and for that reason I must refuse the application for leave to add it.

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