GHP Piling Limited v Leighton Contractors Pty Limited
[2012] NZHC 947
•8 May 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-003231 [2012] NZHC 947
BETWEEN GHP PILING LIMITED Plaintiff
ANDLEIGHTON CONTRACTORS PTY LIMITED
First Defendant
ANDDOWNER EDI WORKS LIMITED Second Defendant
Hearing: 4 May 2012
Appearances: Ms S J O'Brien for Plaintiff
Mr T Cooley for Defendants
Judgment: 8 May 2012
JUDGMENT OF ASSOCIATE JUDGE DOOGUE
This judgment was delivered by me on
08.05.12 at 12 pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Counsel:
Fortune Manning, P O Box 4138, Auckland – sarah.o’[email protected] /
Kensington Swan, Private Bag 92101, Auckland –
GHP PILING LIMITED V LEIGHTON CONTRACTORS PTY LIMITED & ANOR HC AK CIV-2010-404-
003231 [8 May 2012]
[1] The plaintiff commenced these proceeding almost exactly two years ago. The claim is concerned with events that occurred in 2009. The claim arises out of the plaintiff lodging a tender for pile driving work at various construction sites where the first defendant was carrying out construction work. The plaintiff claims that it expended time and resources in preparing its tender. A representation was made to it that there were only two other parties who had submitted tenders. Later the defendants in fact accepted what is described by the plaintiffs as a “non-conforming and late tender from Brian Perry Civil”. Various relief is sought in the original statement of claim. The plaintiffs included a claim for “an enquiry as to the loss”. It would seem that the plaintiff expected to recover some $2,000,000 from the contract had it been successfully awarded the tender.
[2] The detailed chronology of procedural events is as follows:
Date for closing interlocutories 7.10.11
Setting down date 14.03.12
Notice answer interogs served 23.03.12
Defendants object to answering interrogatories 04.04.12
Application for orders answer interrogatories 05.04.12
Date plaintiffs briefs served 23.04.12
Defendants briefs due 21.05.12
Trial date 11.06.12
[3] On 11 April 2012 the plaintiff filed an application seeking leave to file an amended statement of claim. The amended statement of claim identifies a further head of claim which is described as being the loss of a chance to derive further profits that were lost to the plaintiff but which it would have had a chance of earning had the defendants in the first place awarded the tender for the Leighton’s work to it. I understand that the claim in its outline is that had the plaintiff been successful in obtaining the Leighton’s tender it would then have purchased additional equipment which would have enabled it to submit tenders for at least two other major projects which were referred to by counsel before me as the “Roscommon” and the “Remuera
Road” projects. The latter apparently related to work to be done in the Nuffield
Precinct at Newmarket. The amount of the loss claimed from this additional head is
$1,395,000.
[4] The defendants oppose leave being granted on grounds which I will come to shortly.
[5] The plaintiff has now provided its briefs of evidence and it has provided as part of that the calculations prepared by its expert accountant in support of the application for the additional damages. The defendants are due to provide their bridfes of evidence in approximately two weeks time.
[6] The defendants make numerous criticisms of the proposed amended claim. They say that notwithstanding that they have been served with the expert’s brief they would not be able to prepare in time for trial if the amended claim were permitted.
[7] The defendants say that the claim by the plaintiffs in effect assumes that had the plaintiffs been successful and acquired the additional machinery, and had they been successful with the Roscommon and Remuera Road contracts, they would have lodged successful tenders in the sums of, respectively, $2,000,000 and $2,500,000. The plaintiff’s expert proceeds from that basis to calculating what the loss would have been. That calculation apparently depends upon the accountant extrapolating from averages from other years of what the gross profit typically earned by the plaintiff was and also making some assumptions as to what variable costs might have been incurred had the plaintiff been successful in winning the Roscommon and Remuera Road tenders.
[8] The defendants, as a minimum, say that they would need at least the following particulars:
8.1 Who were the principals on the Loss contracts?
8.2 Who were the head contractors (if any) on the Loss contracts?
8.3Whether it was the principal or head contractor that issued the tender for the Loss contracts.
8.4 When were the respective tenders issued for the Loss contracts?
8.5 When were the loss contracts awarded?
8.6How did the plaintiff calculate its tender sum, for each of the Loss contracts and the loss for profit for each of the Loss contracts.
[9] This material would enable the plaintiff to make its own enquiries to get the information that is necessary to examine and assess the damages claimed.
Principles
[10] I will not refer to all of the cases to which the parties made reference. However, it seems to me that the following are the important issues:
a) whether the probable effect of allowing the amended pleading would be the postponement of the trial.[1]
[1] Papps v Mahon, [1966] NZLR 288.
b)whether the amended statement of claim seeks to introduce a new head of claim or a new cause of action.[2]
[2] Chilcott v Goss [1995] 1 NZLR 263.
c) the interests of justice including whether the proposed amendment is necessary to ensure that the real controversy goes to trial and the reasons for delay in seeking to amend the pleadings.[3]
Determination of application
[3] Thornton Hall Manufacturing Ltd v Shanton Apparel Ltd (1989) 3 TCLR 249.
[11] I accept that the proposed amended statement of claim does not introduce a fresh cause of action. The plaintiff continues to plead that the defendants breached obligations that they owed to it as a tenderer for the Leighton contracts.
[12] On the other hand the amended pleading does raise a significant new head of damages which introduces an entirely new range of factual matters which will have to be determined as part of assessing any damages award that the Court might make.
[13] The proposed amended statement of claim is bald in its assertions. Having set out the assumptions on which its claim is based, that the plaintiff would have
purchased the necessary equipment and “would have tendered for the Roscommon
Road and Remuera Road piling contracts” there follows the following statement:
The loss net profit to the plaintiff from the loss of chance contracts was
$1,395,000.
[14] I accept that the plaintiffs have attempted to particularise this additional head of damages by providing to the defendants copies of the expert accountants reports upon which the calculation of the additional heads of damages is based.
[15] However, the experts' calculations are based upon many assumptions. Whether the assumptions are correct or not very much depends upon how the Court ultimately would view the factual matters identified in the claim for particulars which the defendants have made. It is just not known how much the plaintiff might have made by way of profit had it been able to successfully tender for the Roscommon and Remuera contracts. There appears to be an almost complete absence of information about those contracts including the critical issue of how much the successful tenderer submitted by way of tender.
[16] However, what seems clear is that because the Roscommon and Remuera contracts did not involve the plaintiff, information about those contracts over and above what the plaintiff has been able to provide must be sought from the third parties who took part in the letting of the contracts for the two projects. It is not information that can be discovered from either of the parties to the proceeding by discovery applications and the like. Inevitably, for the defendants to prepare its defence they would need information that is held by the party who let the tenders for the Roscommon and Remuera work and/or from the successful tendering party.
[17] Whatever the range of information that might be sought from those third parties, it can be predicted that it will be a long and slow process. It is highly likely that commercial confidentiality would be one of the obstacles that a party to this proceeding would have to surmount to get anything approaching full information about the Roscommon and Remuera contracts.
[18] There is now a little over a month left before the trial starts. In my assessment, there is no real prospect that the defendants are going to be able to
obtain the information that they need to defend themselves against the amended claim for the loss of chance.
[19] In those circumstances, I do not propose to allow the plaintiff to file the amended statement of claim. In brief my reasons are these. First, the plaintiff has had two years to get its claim into order. There is no explanation as to why matters had been left so late in the day. It will sometimes be the case that a party in the plaintiff's position only discovers certain facts very late in the piece and then determines that the new information to hand could have a material effect on its case. That does not seem to be relied upon here. The Court just does not know why what can only be described as a major development in the case is occurring so close to trial. Secondly, it would be unjust for an amendment to be allowed because of the potential result of an adjournment of the trial. The proceedings should now go to trial because to further delay proceedings would cause expense and uncertainty to the defendants. If the amendment is to be granted, it is virtually inevitable that the trial date scheduled for 11 June 2012 will have to be abandoned. That would not be an acceptable outcome in my view.
[20] The plaintiffs attach considerable importance to the fact that the setting down date was 14th March 2012 and it was only a short time after that that they filed and served their application for leave to file an amended statement of claim. I consider the answer to that submission is that it was an unsatisfactory feature of the timetabling that there was not an express direction prohibiting the plaintiff from filing an amended statement of claim right from October 2011 when interlocutories
were closed off. Because of this omission the plaintiff still had the right under the Rules to file an amended statement of claim right up to the setting down date. However, the fact is that the plaintiff does require leave to file this amended statement of claim. The fact that a few weeks earlier it might not have required leave is neither here nor there.
[21] The overall decision of whether leave should be granted or not is one of trying to assess where the justice of the case lies. In my view the key issues are the lateness
of the application, the unparticularised nature of the claim for a loss of a chance, the circumstance that further information will inevitably have to be sought from third parties if the defendant is to successfully defend the application, the consideration there is not going to be enough time for that to be done means that, as I have said, granting the application would almost inevitably result in the trial being adjourned. An adjournment of the trial should not be contemplated by the Court given the amount of time that the plaintiff has had to get its claim into order. I therefore decline the application.
Interrogatories
[22] This matter will be dealt with in a separate judgment which will follow shortly.
J.P. Doogue
Associate Judge
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