Sandvik Mining and Construction Australia Pty Ltd v Dempsey Australia Pty Ltd

Sandvik Mining and Construction Australia Pty Ltd sought to recover damages for alleged breach of contract against Dempsey Australia Pty Ltd. Dempsey sought to defend the claim and also lodged a counterclaim against Sandvik. Dempsey then applied to amend its defence and counterclaim, which was opposed by Sandvik on the basis that it was late and there was no acceptable reason for the delay. Dempsey was required to obtain leave of the court to file and serve the amended defence and counterclaim under rule 381 of the Uniform Civil Procedure Rules. The court was required to determine whether the application should be granted, and whether the defendants were entitled to an order for costs to be borne by each party in light of an adjournment of the trial.

The court found that the application was late and Dempsey had not provided an acceptable reason for the delay. The court also found that Dempsey had not provided evidence about the merits of the case proposed to be introduced by the amendments and that the amendments raised factual issues too extensive to be accommodated at a late stage. The court further found that the amendments would have a significant impact on the proceedings and the outcome of the case. The court held that the application should be refused. Regarding the costs, the court found that the adjournment was not the fault of either party and therefore, there was no order as to costs.

The court refused Dempsey’s application for leave to amend its defence and counterclaim. There was no order as to the costs thrown away by the adjournment of the trial.