Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd

Spiers Earthworks Pty Ltd (appellant) brought an application in the Supreme Court of Western Australia for an extension of time and for leave to appeal against two interlocutory decisions made by Wager DCJ in the District Court on 11 June and 9 July 2009. The interlocutory decisions concerned a building dispute between the appellant and Landtec Projects Corporation Pty Ltd (respondent) arising out of building works at Pinjarra under contractual arrangements between the parties as developer and roadworks contractor, respectively, in 2005. The first interlocutory decision refused to accept an affidavit of Mrs Helen Spiers, sworn 4 June 2009, submitted on behalf of the appellant in support of its application to amend its reply and counterclaim. The second interlocutory decision refused the appellant's application for leave to amend its reply and counterclaim. The Supreme Court dismissed the appellant's application for an extension of time and for leave to appeal on 2 February 2010.

The appellant argued that the trial judge erred in refusing to accept Mrs Spiers' affidavit and in refusing the appellant's application for leave to amend its reply and counterclaim. The court observed that the trial judge had not yet delivered her reasons for judgment at the time of the interlocutory decisions. The appellant had not closed its case at trial and it was not clear whether Mrs Spiers would be required to provide further evidence. The unresolved issue was a matter for counsel to discuss and advise whether Mrs Spiers would continue her evidence early the following week. The trial judge was advised on 30 March 2009 that there would be no further evidence from Mrs Spiers and at that point, the appellant's evidentiary case was closed.

The court concluded that there was no merit in the grounds of appeal as a result of which an extension of time could not be justified. The court observed that the appellant had not demonstrated that there was a reasonable prospect of success on appeal. The court also observed that the appellant had not shown that there was a good arguable case that the trial judge had made an error of law. The court found that the interlocutory decisions were correct and that the appellant had not demonstrated that the trial judge had acted beyond the scope of her jurisdiction. The court dismissed the appellant's application for an extension of time and for leave to appeal and ordered the appellant to pay the respondent's costs of the appeal. The court made an order that the respondent is entitled to have items 1 to 7 (save for item 4) of its bill of costs dated 15 February 2010 taxed pursuant to items 22(a), (b), (g) and (k) and the question referred to the court is answered accordingly. Item 4 should be taxed under item 22(e).