G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 12) [2024] NSWSC 552

G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 12) [2024] NSWSC 552

Leave was granted because CDJV's November 2023 amendment introduced for the first time a contention that actual production and mining constraints would also apply in MACH's counterfactual scenarios, giving MACH an adequate explanation for pleading an alternative response. The Court declined to determine expert merits on the amendment application and found that revised directions, including further expert reports, conclaves and provision for possible recall of witnesses, could give CDJV a fair opportunity to respond notwithstanding the imminent trial.

Jurisdiction
Australia
Judgment Date
10 May 2024
Procedural Posture
Civil Procedure; Pleadings; Amendment in Equity Technology and Construction List / Interlocutory Application by Notice of Motion for Leave to File and Serve a Fourth Further Amended Cross Claim List Statement Before an Eight Week Trial Listed to Commence on 19 August 2024
Outcome
MACH's application for leave to file and serve a Fourth Further Amended Cross-Claim List Statement was granted, with revised directions to be made to ready the matter for trial.
Legal Topics
['pleading Amendment' 'late Application for Amendment' 'misleading or Deceptive Conduct' 'counterfactual Causation and Loss' 'expert Evidence Directions' 'case Management']
['civil Procedure' 'construction Law' 'consumer Law' 'equity'] ['pleading Amendment' 'late Application for Amendment' 'misleading or Deceptive Conduct' 'counterfactual Causation and Loss' 'expert Evidence Directions' 'case Management']

Case Brief

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Procedural Posture

Civil Procedure; Pleadings; Amendment in Equity Technology and Construction List / Interlocutory Application by Notice of Motion for Leave to File and Serve a Fourth Further Amended Cross Claim List Statement Before an Eight Week Trial Listed to Commence on 19 August 2024

Legal Issues

  1. 1 ['Whether MACH should be granted leave, at a late stage before trial, to file and serve a Fourth Further Amended Cross-Claim List Statement introducing an inconsistent alternative case.' "Whether MACH provided an adequate explanation for seeking the amendment after CDJV's expert evidence and November 2023 amendment to its Cross-Claim Response." 'Whether the proposed amended case was bound to fail such that leave should be refused.' 'Whether directions could be made to give CDJV a fair opportunity to respond without unacceptable prejudice to the forthcoming trial.']

Ratio Decidendi

Leave was granted because CDJV's November 2023 amendment introduced for the first time a contention that actual production and mining constraints would also apply in MACH's counterfactual scenarios, giving MACH an adequate explanation for pleading an alternative response. The Court declined to determine expert merits on the amendment application and found that revised directions, including further expert reports, conclaves and provision for possible recall of witnesses, could give CDJV a fair opportunity to respond notwithstanding the imminent trial.

Court Disposition

MACH's application for leave to file and serve a Fourth Further Amended Cross-Claim List Statement was granted, with revised directions to be made to ready the matter for trial.

Orders

  • ['Defendants/Cross-Claimants given leave to file and serve Fourth Further Amended Cross-Claim List Statement.' 'Parties to confer and agree on proposed revised directions needed to ready matter for trial.' 'Directions to make provision for filing and service by CDJV of an amended cross-claim response to the Amended...