Sanderson Motors Pty Ltd v Lindsay Bennelong Developments Pty Ltd [2014] NSWSC 846

Sanderson Motors Pty Ltd v Lindsay Bennelong Developments Pty Ltd [2014] NSWSC 846

The amendments should be struck out. The pleaded allegations against Bradshaw, Mann and Frankipile merely asserted conclusions as to duty, breach and causation and did not plead the material facts necessary to establish those entities as concurrent wrongdoers. As against Sanderson Motors, the amendments should also be disallowed because InterHannover and QBE had adequate time to consider and plead any Pt 4 Civil Liability Act defences promptly, but did not do so before the limitation period for claims against the alleged wrongdoers expired; allowing the amendments would cause substantial prejudice to Sanderson Motors, while the defendants retained potential contribution rights and would...

Jurisdiction
Australia
Judgment Date
27 June 2014
Procedural Posture
Procedural and Other Rulings; Application to Strike Out Amendments to List Responses and Motions Concerning Leave to File Amended List Responses / Interlocutory Motions Before Hearing
Outcome
Plaintiffs' strike out motion largely successful; the impugned amendments in the fifth and sixth defendants' List Responses were struck out, and the fifth and sixth defendants were ordered to pay the plaintiffs' costs of the three motions equally.
Legal Topics
['pleadings' 'strike Out' 'amended List Responses' 'apportionable Claims' 'concurrent Wrongdoers' 'contribution and Indemnity' 'limitation Periods' 'costs']
['civil Procedure' 'torts' 'insurance' 'proportionate Liability'] ['pleadings' 'strike Out' 'amended List Responses' 'apportionable Claims' 'concurrent Wrongdoers' 'contribution and Indemnity' 'limitation Periods' 'costs']

Case Brief

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Procedural Posture

Procedural and Other Rulings; Application to Strike Out Amendments to List Responses and Motions Concerning Leave to File Amended List Responses / Interlocutory Motions Before Hearing

Legal Issues

  1. 1 ["Whether amendments to the fifth and sixth defendants' List Responses identifying Bradshaw, Mann and Frankipile as alleged concurrent wrongdoers should be struck out." 'Whether the amendments were properly pleaded and particularised.' 'Whether delay in pleading the alleged concurrent wrongdoers caused substantial prejudice to Sanderson Motors because claims against those entities would be statute barred.' 'Whether Pt 4 of the Civil Liability Act 2002 (NSW) required plaintiffs to join all potential concurrent wrongdoers or displaced ordinary case management principles.' 'Whether defendants retained contribution rights if the proportionate liability defences were struck out.']

Ratio Decidendi

The amendments should be struck out. The pleaded allegations against Bradshaw, Mann and Frankipile merely asserted conclusions as to duty, breach and causation and did not plead the material facts necessary to establish those entities as concurrent wrongdoers. As against Sanderson Motors, the amendments should also be disallowed because InterHannover and QBE had adequate time to consider and plead any Pt 4 Civil Liability Act defences promptly, but did not do so before the limitation period for claims against the alleged wrongdoers expired; allowing the amendments would cause substantial prejudice to Sanderson Motors, while the defendants retained potential contribution rights and would...

Court Disposition

Plaintiffs' strike out motion largely successful; the impugned amendments in the fifth and sixth defendants' List Responses were struck out, and the fifth and sixth defendants were ordered to pay the plaintiffs' costs of the three motions equally.

Orders

  • ['Paragraphs 28(f) and 28(g) of the document entitled "Commercial List Response" filed on 28 March 2014 by the fifth defendant be struck out;' 'The underlined parts of paragraphs 24.2 (other than in the last line of that paragraph) and paragraphs 24.5, 24.6 and 24.7 of the Amended Technology and Construction List...