Tanuvasa v USG Boral Building Products

Tanuvasa, the plaintiff, brought an action against USG Boral Building Products, the defendant, claiming damages for injuries sustained in a fall at a construction site. The defendant filed a late application seeking leave to amend its defence to include a limitation bar defence, which it had previously overlooked. The matter was heard in the Supreme Court of New South Wales. The defendant argued that the plaintiff's claim was time-barred, and thus, the amendment was necessary to address a previously overlooked defence. The plaintiff opposed the application, citing the defendant's tardy litigation conduct as a significant factor.

The court was required to determine whether the defendant's late application for leave to amend its defence should be granted. The court had to consider the provisions of section 58(2) of the Civil Procedure Act 2005 (NSW) and assess the prejudice to both parties if the amendment was allowed. The court also had to balance the defendant's right to a fair trial against the plaintiff's right to have their claim heard in a timely manner.

The court found that the defendant's tardiness in filing the application for leave to amend its defence significantly prejudiced the plaintiff, as it had already incurred costs and expenses in preparing for the trial. The court held that the defendant's right to a fair trial was outweighed by the prejudice caused to the plaintiff, and therefore, the application for leave to amend the defence was refused. The court emphasised that the defendant's conduct throughout the litigation process had been unsatisfactory, and this contributed to the decision not to grant the application.

The court ordered that the defendant's application for leave to amend its defence was dismissed. The trial proceeded as scheduled, and the defendant was required to proceed with its original defence. The court further ordered that the defendant pay the plaintiff's costs of the application.