The Nominal Defendant v Roxwood Downs Pty Ltd - [2025] NSWSC 537

Supreme Court

New South Wales

Medium Neutral Citation: The Nominal Defendant v Roxwood Downs Pty Ltd [2025] NSWSC 537
Hearing dates: 21 May 2025
Date of orders: 28 May 2025
Decision date: 28 May 2025
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
(1)   Roxwood and the Council have leave to file their amended defences.
(2)   If either Roxwood or the Council wish to be heard against an order that they should bear the Nominal Defendant’s costs thrown away as the result of the leave they have been granted, they should approach within 7 days with short written submissions.
(3)   Otherwise the costs order will be that Roxwood and the Council should bear the Nominal Defendant’s costs thrown away as the result of the leave they have been granted.
(4)   The parties should confer about the further orders which Chen J should be asked to make as a result of the leave granted.
(5)   Leave granted to the First Defendant to file and serve an Amended Statement of Cross Claim (being the Third Cross-Claim in the proceedings) naming Certain Underwriters at Lloyds subscribing to contract B0723FN02483A16 as the Cross-Defendant to the Third Cross-Claim), by 4 June 2025.
(6)   Leave granted to the First Defendant to file a further amended statement of cross-claim (in relation to the first-cross claim) by 4 June 2025.

Catchwords:
CIVIL PROCEDURE – application for leave to amend defence – application to withdraw admissions claimed to be made as a result of a mistake and to plead further defences – where leave to amend will not result in delay, wasted costs, irreparable unfair prejudice or adjournment of trial – leave to withdraw admissions and amend defence granted
CIVIL PROCEDURE – application to amend cross claim – amendments not opposed from grant of leave – leave granted

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Motor Accidents Compensation Act1999 (NSW)
Road Transport Act 2013 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Aon Risk Services Pty Ltd v Australian National University (2009) HCA 29: (2009) 239 CLR 175
Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738
Drabsch [v Switzerland General Insurance Co Ltd (Supreme Court (NSW), 16 October 1996, unrep)
Kelly v Mina [2014] NSWCA 9
Khouri v National Australia Bank Ltd [2007] NSWSC 987
Maile v Rafiq [2005] NSWCA 410
Namberry Craft Pty Ltd v Watson [2011] VSC 136

Category: Principal judgment
Parties: The Nominal Defendant (Plaintiff)
Roxwood Downs P/L (First Defendant/First Cross-Claimant)
Lake Macquarie City Council (Second Defendant/Second Cross-Claimant)
Surf Life Saving New South Wales (Third Defendant/Third Cross-Claimant
Representation:
Counsel:
B Jones (Plaintiff)
E Anderson (First Defendant)
T Smartt (Second Defendant)
Solicitors:
Sparke Helmore (Plaintiff)
Taylor Splatt & Partners (First Defendant/First Cross-Claimant)
Moray & Agnew (Second Defendant/Second Cross-Claimant))
Barry Nilsson Lawyers (Third Defendant/Third Cross-Claimant)

File Number(s): 2022/348305
Publication restriction: Nil

JUDGMENT

In 2022 the Nominal Defendant brought proceedings against Roxwood Downs Pty Ltd, the Council and the charity Surf Life Savings NSW, seeking recovery of payments…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 537
Decision Date: 28 May 2025

CaseChat Overview and Summary

The Nominal Defendant filed an application in the Federal Court of Australia seeking leave to amend its defence and withdraw certain admissions that were claimed to have been made due to a mistake. Roxwood Downs Pty Ltd opposed the application on the grounds that it would result in delay and prejudice. The court was required to determine whether the Nominal Defendant should be granted leave to amend its defence and withdraw the admissions. Additionally, Roxwood Downs Pty Ltd filed a cross-claim against the Nominal Defendant, which it sought to amend. The court had to decide whether leave should be granted for the cross-claim to be amended.

The court considered the factors relevant to granting leave to amend pleadings, including the timing of the application, the reason for the amendment, and the potential for delay, wasted costs, or unfair prejudice. The court found that the Nominal Defendant's application was not made inordinately late, and the reason for the amendment was a genuine mistake. The court also found that the amendment would not result in any of the negative consequences outlined above. Therefore, the court granted the Nominal Defendant leave to withdraw the admissions and amend its defence. The court also found that Roxwood Downs Pty Ltd's proposed amendments to its cross-claim were not opposed and granted leave for the cross-claim to be amended.

The court ordered that the Nominal Defendant be granted leave to withdraw the admissions and amend its defence. The court also ordered that Roxwood Downs Pty Ltd be granted leave to amend its cross-claim. The court did not make any orders regarding costs or further directions.

Orders