Built NSW Pty Ltd v Politic Pty Ltd [2015] NSWSC 380

Built NSW Pty Ltd v Politic Pty Ltd [2015] NSWSC 380

The Additional Terms Claim was not reasonably arguable because the Design and Construct Contract contained entire agreement provisions indicating that the contractual terms were embodied only in the documents identified in the Formal Instrument of Agreement. The Rectification Claim, although weak, could not be said to be not reasonably arguable and, on the evidence, an adjournment was not shown to be necessary; leave should therefore be granted subject to liberty for Built NSW to seek revocation if compliance with directions proved impossible or reply evidence caused irremediable prejudice. The Implied Term Claim should not be allowed because it added little to Politic's case, depended on...

Jurisdiction
Australia
Judgment Date
09 April 2015
Procedural Posture
Application to Amend Pleadings and File Additional Evidence in Proceedings Concerning a Design and Construct Contract / Interlocutory Motion Before Listed Hearing
Outcome
Motion allowed in part.
Legal Topics
['amendment of Pleadings' 'overriding Purpose' 'vacation of Hearing Date' 'prejudice' 'entire Agreement Clauses' 'rectification' 'implied Terms']
['practice and Procedure' 'contract Law' 'building and Construction'] ['amendment of Pleadings' 'overriding Purpose' 'vacation of Hearing Date' 'prejudice' 'entire Agreement Clauses' 'rectification' 'implied Terms']

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Procedural Posture

Application to Amend Pleadings and File Additional Evidence in Proceedings Concerning a Design and Construct Contract / Interlocutory Motion Before Listed Hearing

Legal Issues

  1. 1 ['Whether Politic should be granted leave to amend its cross-claim to plead additional terms, rectification, and an implied term concerning maximisation of floor space area.' 'Whether the proposed amended claims were reasonably arguable.' 'Whether the proposed amendments should be refused having regard to ss 56 to 60 of the Civil Procedure Act 2005 (NSW), Aon principles, delay, prejudice, and possible vacation of the hearing date.']

Ratio Decidendi

The Additional Terms Claim was not reasonably arguable because the Design and Construct Contract contained entire agreement provisions indicating that the contractual terms were embodied only in the documents identified in the Formal Instrument of Agreement. The Rectification Claim, although weak, could not be said to be not reasonably arguable and, on the evidence, an adjournment was not shown to be necessary; leave should therefore be granted subject to liberty for Built NSW to seek revocation if compliance with directions proved impossible or reply evidence caused irremediable prejudice. The Implied Term Claim should not be allowed because it added little to Politic's case, depended on...

Court Disposition

Motion allowed in part.

Orders

  • ['There should be orders in terms of paragraphs 2 and 3 of the Amended Notice of Motion.' 'Politic should be permitted to file an Amended Statement of Cross-Claim insofar as the amended claim pleads that the FSA Term was an express or implied term of the Design and Construct Contract and the Rectification Claim.'...