Owners Strata Plan No 80453 v Walsh

[2014] NSWSC 729

Supreme Court

New South Wales

Medium Neutral Citation:	Owners Strata Plan No 80453 v Walsh [2014] NSWSC 729
Hearing dates:	23/05/2014
Decision date:	23 May 2014
Before:	Ball J
Decision:	See paragraph 15 of this judgment
Catchwords:	PROCEDURE - civil - UCPR r 12.6 - whether consent or leave required to withdraw admission - whether subsequently filed list response impliedly withdraws admission made in original list response - where plaintiff "on notice"
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Global Alliance Network Pty Ltd v Sensis Pty Ltd [2007] NSWCA 163
Category:	Procedural and other rulings
Parties:	Owners Strata Plan No 80453 (Plaintiff) David John Walsh (First Defendant) Milano Investments Pty Ltd (Second Defendant)
Representation:	Counsel: T Lynch SC / FP Hicks (Plaintiff/Respondent) D Weinberger (Second Defendant/Applicant) Solicitors: Sparke Helmore (Plaintiff/Respondent) JS Mueller & Co (Second Defendant/Applicant)
File Number(s):	2011/374915
Publication restriction:	Nil

EX TEMPORE Judgment

1. In proceedings transferred to this court from the Consumer, Trader and Tenancy Tribunal by order made on 14 November 2011, the plaintiff, The Owners Corporation of Strata Plan No 80453, sues the second defendant and developer of the strata plan, Milano Investments Pty Ltd, for defects in the residential apartment building that comprises the strata plan. The plaintiff also sued the first defendant, Mr Walsh, on the basis that he was the builder in respect of the development. Mr Walsh has not participated in the proceedings and the plaintiff has obtained default judgment against him.

1. In the original Technology and Construction List Response filed by the second defendant on 20 April 2012, the second defendant made admissions to the effect that it had engaged Mr Walsh to undertake the construction of the residential apartment development comprising the strata plan.

1. On 22 January 2013, the plaintiff filed an Amended Summons and Amended List Statement. It appears that, in the meantime, the second defendant changed its solicitors and, on 28 February 2013, those new solicitors filed a List Response in response to the Amended List Statement.

1. The issue before the court is whether that List Response was effective to withdraw an admission made by the second defendant in the original List Response concerning the capacity in which Mr Walsh was engaged.

1. Two things may be said about the two List Responses. First, the original List Response is not well drafted and appears to have been prepared by someone unfamiliar with the practice in the Technology and Construction List. Second, the second List Response is in a completely different form from the first one.

1. An issue arose between the parties concerning whether the second defendant was entitled, without leave, to file the List Response in response to the Amended List Statement. The plaintiff's position was that the second defendant required leave to file what its solicitors described in a letter dated 27 March 2013 as a "new fresh document". The solicitors suggested that the plaintiff seek leave to file such a document.

1. On 3 April 2013, the solicitors for the second defendant responded to the plaintiff's solicitors' letter dated 27 March 2013 by attaching a proposed consent order. Paragraph 1 of the proposed consent order provides:

The second defendant is given leave to file the Technology & Construction List Response that was filed on 28 February 2013.

The solicitors for the plaintiff indicated that their client consented to the proposed order, and it is apparent from subsequent correspondence that the court made those orders by consent.

1. On 19 February 2014, the solicitors for the plaintiff raised for the first time the fact that the effect of the List Response was to withdraw the admission concerning Mr Walsh's role that had been made in the original List Response and that the second defendant had not obtained leave to withdraw that admission.

1. Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 12.6 provides:

(1) A party raising any matter in a defence or subsequent pleading may withdraw the matter at any time.

(2) Despite subrule (1), a party may not withdraw any admission, or any other matter that operates for the benefit of another party, except with the consent of the other party or by leave of the court.

(3) A withdrawal under this rule is to be made by filing a notice of withdrawal stating the extent of the withdrawal.

(4) If the withdrawal is by consent, the notice under subrule (3) must be accompanied by a notice from each party whose consent is required by subrule (2) to the effect that the party consents to the admission or other matter being withdrawn in accordance with the notice of withdrawal.

1. The plaintiff contends that the second defendant has not complied with this rule because it did not file "a notice of withdrawal stating the extent of the withdrawal" and that notice was not accompanied by "a notice from each party whose consent is required...to the effect that the party consents to the admission or other matter being withdrawn".

1. I accept the second defendant's submission that the second List Response and the consent order themselves are sufficient to comply with those requirements. UCPR r 12.6 does not itself require the notices it contemplates to be in any particular form. In my opinion, it is not in the interests of justice to apply an overly strict interpretation to the requirements of the rules, including r 12.6, particularly in commercial litigation of the sort that is in question in this case.

1. Looking at the matter objectively, at the time the plaintiff received the second List Response and having regard to the differences between it and its predecessor, it is hard to imagine that the plaintiff would not have gone through the second List Response with some care to understand precisely what changes were being effected. It would have been obvious, if that had been done, that the admission had been withdrawn.

1. As a result, the plaintiff was on notice of what was sought to be effected by the second Technology and Construction List Response and the plaintiff gave its consent to what was proposed. That consent was recorded in the short minutes of order. That was sufficient compliance with the requirements of UCPR r 12.6.

1. Although perhaps not directly on point, the conclusion that I have reached is supported by the judgment of Tobias JA in Global Alliance Network Pty Ltd v Sensis Pty Ltd [2007] NSWCA 163 at [71] and [72], where his Honour appears to have accepted that there would be sufficient compliance with UCPR r 12.6 if the withdrawal of the admission occurs in a defence and where the plaintiff has consented to the filing of that defence.

1. For these reasons, the second defendant should be entitled to rely on its second List Response, even though that List Response no longer contains an admission that it had previously made.

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