Olympic Place Pty Limited v Gamcorp (Melbourne) Pty Ltd [2020] NSWSC 261

Olympic Place Pty Limited v Gamcorp (Melbourne) Pty Ltd [2020] NSWSC 261

Leave to amend was refused because Gamcorp had not adequately explained its delay in investigating Bondor's role and pleading the proportionate liability defence, when Gamcorp knew or ought reasonably to have been able to become aware much earlier of Bondor's involvement and the roof panel issues. Granting leave at the late stage of the proceedings would create a risk of real prejudice to the plaintiffs, who were likely to have lost the opportunity to sue Bondor if Gamcorp's concurrent wrongdoer defence succeeded, and would likely cause further delay. In those circumstances, the amendment was not consistent with the dictates of justice or ss 56 and 57 of the Civil Procedure Act 2005 (NSW).

Jurisdiction
Australia
Judgment Date
20 March 2020
Procedural Posture
Notice of Motion for Leave to File and Serve an Amended Commercial List Response to Plead a Proportionate Liability Defence / Interlocutory Application in the Equity Technology and Construction List
Outcome
The defendant's notice of motion for leave to amend was dismissed, with costs to the plaintiffs.
Legal Topics
['leave to Amend Pleadings' 'proportionate Liability Defence' 'concurrent Wrongdoer' 'delay' 'prejudice' 'limitation Risk' 'costs']
['civil Procedure' 'building and Construction' 'proportionate Liability'] ['leave to Amend Pleadings' 'proportionate Liability Defence' 'concurrent Wrongdoer' 'delay' 'prejudice' 'limitation Risk' '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

Notice of Motion for Leave to File and Serve an Amended Commercial List Response to Plead a Proportionate Liability Defence / Interlocutory Application in the Equity Technology and Construction List

Legal Issues

  1. 1 ['Whether Gamcorp should be granted leave to amend its commercial list response to plead that Bondor was a concurrent wrongdoer within Part 4 of the Civil Liability Act 2002 (NSW).' 'Whether Gamcorp adequately explained its delay in raising the proposed proportionate liability defence more than three and a half years after the proceedings were commenced.' 'Whether granting leave would cause real prejudice to the plaintiffs because they were likely to be statute barred from suing Bondor.' 'Whether granting leave would be consistent with the dictates of justice and the overriding purpose in ss 56 and 57 of the Civil Procedure Act 2005 (NSW).']

Ratio Decidendi

Leave to amend was refused because Gamcorp had not adequately explained its delay in investigating Bondor's role and pleading the proportionate liability defence, when Gamcorp knew or ought reasonably to have been able to become aware much earlier of Bondor's involvement and the roof panel issues. Granting leave at the late stage of the proceedings would create a risk of real prejudice to the plaintiffs, who were likely to have lost the opportunity to sue Bondor if Gamcorp's concurrent wrongdoer defence succeeded, and would likely cause further delay. In those circumstances, the amendment was not consistent with the dictates of justice or ss 56 and 57 of the Civil Procedure Act 2005 (NSW).

Court Disposition

The defendant's notice of motion for leave to amend was dismissed, with costs to the plaintiffs.

Orders

  • ["Dismiss the defendant's notice of motion filed on 18 December 2019." "The defendant to pay the plaintiffs' costs of the motion."]