Probuild Constructions (Aust) Pty Limited v Shade Systems Limited

Probuild Constructions (Aust) Pty Limited filed an application against Shade Systems Limited in the Federal Court of Australia. The primary dispute centres around the maintenance of litigation, which Probuild claims is unconscionable under the Australian Consumer Law. The matter was heard in the Technology and Construction List. The primary legal issue before the court was whether the proposed amended defence, which alleges that the continuation of litigation by the plaintiff is unconscionable, was so weak that it justified a peremptory rejection. The court had to determine if there was a rule of law preventing litigious conduct from being considered conduct in trade or commerce. If such a rule existed, the court would have had to reject the amendment outright. However, the court found no such rule and held that determining the strength of the proposed defence would require a consideration of the overall evidence.

The court considered that litigious conduct could constitute conduct in trade or commerce, and therefore, the strength of the proposed defence would need to be evaluated in the context of the entire case. The court emphasised that the decision to allow an amendment should not be based on a preliminary assessment of the strength of the proposed defence. Instead, the focus should be on whether the amendment has a real prospect of success and whether it introduces new issues that need to be addressed. The court concluded that the plaintiff's proposed amendment was not so weak that it warranted outright rejection. Consequently, the court granted leave for the defendant to amend its defence to include the allegation of unconscionable conduct by the plaintiff in maintaining the litigation.

The court's decision highlights the importance of allowing parties to present all relevant defences, provided they have a reasonable prospect of success. The court did not dismiss the proposed amendment based on a preliminary assessment of its strength. Instead, it recognised that the strength of the defence would depend on the overall evidence presented in the case. The court's approach ensures that the litigation process remains fair and just, allowing all relevant issues to be considered. The final orders of the court granted leave for the defendant to amend its defence to include the allegation of unconscionable conduct by the plaintiff in maintaining the litigation. This decision ensures that the case proceeds with all relevant issues being addressed, promoting a fair and comprehensive resolution of the dispute.