Westpoint Management Ltd (Receivers and Managers Appointed) (in Liquidation) & Anor v QBE Insurance (Australia) Ltd [2009] NSWSC 989

Westpoint Management Ltd (Receivers and Managers Appointed) (in Liquidation) & Anor v QBE Insurance (Australia) Ltd [2009] NSWSC 989

Leave to amend was refused because the proposed amendments were brought too late, shortly before the fixed hearing, were inchoate and unparticularised, and would introduce a new disputed case about termination, repudiation and builder performance causing significant prejudice to the plaintiffs. Applying the overriding purpose rule and Aon, the principled exercise of discretion required dismissal of the motion for leave to amend. Production under the notice to produce was ordered because the defendant claimed severe prejudice without the documents, but the burden on Westpoint was addressed by conditions requiring the defendant to pay reasonable compliance costs in advance on a stepped basis.

Jurisdiction
Australia
Judgment Date
18 September 2009
Procedural Posture
Practice and Procedure; Interlocutory Motions in Commercial List Proceedings Concerning Performance Guarantee Bonds / Application for Leave to Amend Pleadings and Notices to Produce Before Final Hearing
Outcome
Leave to amend the Commercial List Response and Commercial List Cross-Claim Statement refused; production ordered subject to conditions; costs reserved.
Legal Topics
['late Application for Leave to Amend' 'overriding Purpose Rule' 'case Management' 'notice to Produce' 'performance Guarantee Bonds' 'unconditional Bonds']
['civil Procedure' 'practice and Procedure' 'commercial Law' 'insurance'] ['late Application for Leave to Amend' 'overriding Purpose Rule' 'case Management' 'notice to Produce' 'performance Guarantee Bonds' 'unconditional Bonds']

Case Brief

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Procedural Posture

Practice and Procedure; Interlocutory Motions in Commercial List Proceedings Concerning Performance Guarantee Bonds / Application for Leave to Amend Pleadings and Notices to Produce Before Final Hearing

Legal Issues

  1. 1 ['Whether the defendant should be granted leave shortly before hearing to amend its Commercial List Response and Commercial List Cross-Claim Statement to plead that liability under the bonds had ended after certificates of practical or final completion.' 'Whether the defendant should be granted leave to amend paragraph 14K by replacing termination of the building contract with purported termination.' "Whether Westpoint should be required to produce documents sought by the defendant's notice to produce and, if so, on what conditions." "Whether the plaintiffs' motion to set aside parts of the defendant's notice to produce should be accepted."]

Ratio Decidendi

Leave to amend was refused because the proposed amendments were brought too late, shortly before the fixed hearing, were inchoate and unparticularised, and would introduce a new disputed case about termination, repudiation and builder performance causing significant prejudice to the plaintiffs. Applying the overriding purpose rule and Aon, the principled exercise of discretion required dismissal of the motion for leave to amend. Production under the notice to produce was ordered because the defendant claimed severe prejudice without the documents, but the burden on Westpoint was addressed by conditions requiring the defendant to pay reasonable compliance costs in advance on a stepped basis.

Court Disposition

Leave to amend the Commercial List Response and Commercial List Cross-Claim Statement refused; production ordered subject to conditions; costs reserved.

Orders

  • ['Dismiss paragraph 1 in the notice of motion filed by the defendant on 7 September 2009.' "Make order 2 as sought in the defendant's notice of motion of 7 September 2009." 'Westpoint is to produce the documents sought by the defendant under the subject notice to produce, subject to conditions.' 'In the first...