Turner and Townsend Pty Ltd v Berry

Turner and Townsend Pty Ltd, the applicant, sought leave to withdraw certain admissions made in its amended statement of claim against the Berry respondents. The Federal Court was asked to determine whether the applicant could withdraw admissions made in paragraphs 18 and 19 of its amended statement of claim, which related to the existence of certain documents and the authority of individuals within the respondent companies. The court was required to consider the principles established in Drabsch v Switzerland General Insurance Co Ltd, particularly those concerning the reliance on admissions and the assumptions of the opposing party.

The court held that the applicant had not relied on the admissions in question and that the respondents had reasonably assumed that the applicant had original documents to support the admissions. The Berry respondents had not suffered any prejudice as a result of the applicant's attempt to withdraw the admissions. The court found that the principles in Drabsch v Switzerland General Insurance Co Ltd applied, and the applicant was granted leave to withdraw the admissions nunc pro tunc. The court also ordered that the Berry respondents be granted leave to withdraw their admissions, and that the applicant pay the first respondent's costs of the notice of motion filed on 16 December 2011 as agreed or taxed. The second and third respondents' costs of the notice of motion were to be costs in the cause. The applicant was required to serve a draft further amended statement of claim by 5 March 2012, and the respondents were to notify the applicant of any objections to the draft further amended statement of claim by 12 March 2012.

The court further ordered that the matter be listed for further directions at 9.15 a.m. on 29 March 2012, that the second and third respondents were to notify the first respondent of these orders, that the applicant's interlocutory application filed on 10 February 2012 be dismissed, and that each party pay their own costs in connection with the interlocutory application. The second and third respondents' notice of motion filed on 16 December 2012 to strike out the applicant's claims against the fourth and fifth respondents was adjourned until 29 March.