Nalos Pty Ltd v Robert Bird Group Pty Ltd

The case of Nalos Pty Ltd v Robert Bird Group Pty Ltd involves a dispute regarding the construction of a regional distribution centre (RDC) for Woolworths in northern New South Wales and Queensland. The plaintiffs, Nalos, allege that the defendants, Robert Bird Group and Watpac, are liable for breach of contract and negligence in relation to the design and construction of the concrete slab flooring of the RDC’s ambient facility. Nalos further seeks to add new causes of action for misleading or deceptive conduct under the Trade Practices Act 1974 (Cth). The court was required to determine whether it was appropriate to grant leave to amend the further amended claim and further amended statement of claim to include these new causes of action, considering whether the plaintiffs had provided an adequate explanation for their delay in seeking to add the new causes of action and whether a fair trial of the proceeding could be secured with the addition of the new causes of action notwithstanding such delay.

The court held that if the new causes of action were allowed to proceed, there would be a significant risk of injustice to the Robert Bird Group and Watpac. In circumstances where no explanation for the delay in seeking to prosecute such claims had been advanced, the court refused to exercise its discretion under r 376 UCPR to permit the causes of action under the Trade Practices Act to be added to this proceeding. The court emphasised that justice was the paramount consideration in determining an application to amend pleadings and that the rules were to be applied with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of the rules.

The application was dismissed, and the court directed that the parties be heard on the question of costs. The court made no orders regarding the new causes of action, and they were not allowed to proceed in the case.