Lucas Stuart Pty Limited v Hemmes Hermitage Pty Limited [2012] NSWSC 1184

Lucas Stuart Pty Limited v Hemmes Hermitage Pty Limited [2012] NSWSC 1184

Leave was granted because the proposed amendments were not shown to be futile, Lucas Stuart gave a satisfactory explanation for the amendments and the late affidavit, the likely costs to Hemmes were significant but had to be assessed in light of the amounts in issue and the scale of the 12 week reference, there was no suggestion Hemmes' costs would be greater than if the claims had been made earlier, and the adjourned reference date meant Hemmes was very likely able to respond within the available time without jeopardising the hearing.

Jurisdiction
Australia
Judgment Date
28 September 2012
Procedural Posture
Interlocutory Applications / Notice of Motion Dated 24 August 2012 Seeking Leave to File Amended Pleadings and Rely on an Affidavit
Outcome
Plaintiff granted leave to file amended pleadings and to rely on Mr Ainsworth's affidavit, with costs orders in favour of the defendant.
Legal Topics
['pleading Amendment' 'further Evidence' 'costs' 'delay' 'case Management' 'technology and Construction List']
['practice and Procedure' 'civil Procedure' 'building and Construction'] ['pleading Amendment' 'further Evidence' 'costs' 'delay' 'case Management' 'technology and Construction List']

Case Brief

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Procedural Posture

Interlocutory Applications / Notice of Motion Dated 24 August 2012 Seeking Leave to File Amended Pleadings and Rely on an Affidavit

Legal Issues

  1. 1 ['Whether Lucas Stuart should be granted leave to file a Second Further Amended Summons and Second Further Amended Technology and Construction List Statement.' 'Whether Lucas Stuart should be granted leave to file a Further Technology and Construction List Response to the Third Further Amended Technology and Construction List Cross-Claim.' 'Whether Lucas Stuart should be granted leave to rely on the affidavit of Mark Ainsworth dated 10 August 2012 despite the earlier guillotine order.' 'Whether likely costs, delay, the explanation for the amendments and affidavit, and the timing of the reference justified refusing leave.']

Ratio Decidendi

Leave was granted because the proposed amendments were not shown to be futile, Lucas Stuart gave a satisfactory explanation for the amendments and the late affidavit, the likely costs to Hemmes were significant but had to be assessed in light of the amounts in issue and the scale of the 12 week reference, there was no suggestion Hemmes' costs would be greater than if the claims had been made earlier, and the adjourned reference date meant Hemmes was very likely able to respond within the available time without jeopardising the hearing.

Court Disposition

Plaintiff granted leave to file amended pleadings and to rely on Mr Ainsworth's affidavit, with costs orders in favour of the defendant.

Orders

  • ['I grant leave to the plaintiff to file a Second Further Amended Summons and Second Further Amended Technology and Construction List Statement in the form of the document annexed and marked "A" to the plaintiff\'s Notice of Motion of 24 August 2012.' 'I grant leave to the plaintiff to file a Further Technology and...