Loulach Developments Pty Ltd v Roads and Maritime Services [2018] NSWSC 1402

Loulach Developments Pty Ltd v Roads and Maritime Services [2018] NSWSC 1402

Although the defendant delayed in seeking the amendment, the delay was explained by sworn, unchallenged evidence that the possible limitation defence was only identified in preparation for mediation. The plaintiff produced no evidence of forensic decisions made in reliance on the absence of a limitation defence, and no such prejudice appeared from the materials relied on. Any lack of clarity in the particulars could be addressed by a request for further particulars. Accordingly, the considerations in ss 56-58 of the Civil Procedure Act 2005 (NSW) compelled the grant of leave to amend, and the defendant/applicant was entitled to its costs because the plaintiff's unsupported opposition to...

Jurisdiction
Australia
Judgment Date
11 September 2018
Procedural Posture
Interlocutory Application for Leave to File an Amended Defence / Contested Notice of Motion Filed 6 September 2018, Heard Before Trial
Outcome
Application granted; costs awarded to the defendant/applicant.
Legal Topics
['late Amendment of Defence' 'limitation Defence' 'prejudice From Amendment' 'further Particulars' 'costs Follow the Event']
['civil Procedure' 'limitation of Actions' 'costs'] ['late Amendment of Defence' 'limitation Defence' 'prejudice From Amendment' 'further Particulars' 'costs Follow the Event']

Case Brief

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Procedural Posture

Interlocutory Application for Leave to File an Amended Defence / Contested Notice of Motion Filed 6 September 2018, Heard Before Trial

Legal Issues

  1. 1 ['Whether the defendant should be granted leave to amend its defence shortly before trial to plead a limitation defence under s 14(1)(b) of the Limitation Act 1969.' 'Whether delay, alleged lack of clarity in particulars, or alleged forensic prejudice justified refusing the amendment.' 'Whether costs of the notice of motion should follow the event.']

Ratio Decidendi

Although the defendant delayed in seeking the amendment, the delay was explained by sworn, unchallenged evidence that the possible limitation defence was only identified in preparation for mediation. The plaintiff produced no evidence of forensic decisions made in reliance on the absence of a limitation defence, and no such prejudice appeared from the materials relied on. Any lack of clarity in the particulars could be addressed by a request for further particulars. Accordingly, the considerations in ss 56-58 of the Civil Procedure Act 2005 (NSW) compelled the grant of leave to amend, and the defendant/applicant was entitled to its costs because the plaintiff's unsupported opposition to...

Court Disposition

Application granted; costs awarded to the defendant/applicant.

Orders

  • ['The defendant be granted leave to file an amended defence in the form annexed to the notice of motion filed 6 September 2018 within seven days of today.' 'The plaintiff/respondent pay the costs of the defendant/applicant of the notice of motion filed 6 September 2018.']