Absolute Tiling Solutions Pty Limited v Bonett; Bonett v Absolute Tiling Solutions Pty Limited [2021] NSWDC 475

Absolute Tiling Solutions Pty Limited v Bonett; Bonett v Absolute Tiling Solutions Pty Limited [2021] NSWDC 475

Leave to amend was granted because the limitation issue under s 18E had been plainly identified in the expert material, the relevant factual matters were limited and already substantially addressed by evidence, the respondent had not demonstrated unfair prejudice requiring refusal of leave, and any wasted costs could be addressed by an appropriate costs order.

Jurisdiction
Australia
Judgment Date
18 August 2021
Procedural Posture
Civil Procedural Ruling in Proceedings Concerning Tiling Work, Quantum Meruit, Alleged Defects and Conversion / Application During Trial for Leave to Amend Defence to Cross Claim to Rely on S 18 E of the Home Building Act 1989
Outcome
Leave granted to the plaintiff/cross-defendant to file an amended defence to cross-claim relying on s 18E of the Home Building Act 1989; costs thrown away by reason of the amendment awarded against the plaintiff/cross-defendant, with other costs reserved.
Legal Topics
['amendment of Pleadings' 'statutory Warranties' 'warranty Period' 'quantum Meruit' 'unfair Prejudice' 'wasted Costs']
['civil Procedure' 'home Building' 'contract' 'limitation of Actions'] ['amendment of Pleadings' 'statutory Warranties' 'warranty Period' 'quantum Meruit' 'unfair Prejudice' 'wasted Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Procedural Ruling in Proceedings Concerning Tiling Work, Quantum Meruit, Alleged Defects and Conversion / Application During Trial for Leave to Amend Defence to Cross Claim to Rely on S 18 E of the Home Building Act 1989

Legal Issues

  1. 1 ['Whether Absolute Tiling Solutions Pty Limited should be granted leave to amend its defence to cross-claim to plead reliance on s 18E of the Home Building Act 1989.' 'Whether delay, wasted costs, unfair prejudice or case management considerations should preclude the amendment.' 'Whether an adjournment was necessary to avoid prejudice if the amendment were allowed.']

Ratio Decidendi

Leave to amend was granted because the limitation issue under s 18E had been plainly identified in the expert material, the relevant factual matters were limited and already substantially addressed by evidence, the respondent had not demonstrated unfair prejudice requiring refusal of leave, and any wasted costs could be addressed by an appropriate costs order.

Court Disposition

Leave granted to the plaintiff/cross-defendant to file an amended defence to cross-claim relying on s 18E of the Home Building Act 1989; costs thrown away by reason of the amendment awarded against the plaintiff/cross-defendant, with other costs reserved.

Orders

  • ['Grant leave to the plaintiff/cross-defendant to file an amended defence to cross-claim relying on s 18E of the Home Building Act 1989.' 'The plaintiff/cross-defendant pay for any costs thrown away by reason of the amendment, but otherwise reserve the costs of the application.']