LCT-MRE Nominees Pty Ltd (as trustee of the LCT-MRE Trust and in its personal capacity) v Thiess Pty Ltd (No 2) [2022] NSWSC 969

LCT-MRE Nominees Pty Ltd (as trustee of the LCT-MRE Trust and in its personal capacity) v Thiess Pty Ltd (No 2) [2022] NSWSC 969

Leave to amend pleadings was granted except for amendments referring to mix design and curing decisions involving non-parties, as their late inclusion would prejudice defendants by loss of opportunity to cross-claim against relevant subcontractors who may now be statute barred; deletion of specified paragraphs ordered and leave subject to possible revocation if future prejudice is identified.

Parties
First Plaintiff: LCT-MRE Nominees Pty Ltd (as trustee of the LCT-MRE Trust and in its personal capacity); Second Plaintiff: LCT-MRE Pty Ltd; First Defendant | First Cross Claimant: Thiess Pty Ltd; Second Defendant | Second Cross Claimant: John Holland Pty Ltd; Third Defendant: CIMIC Group Ltd; First Cross Defendant: WSP Australia Pty Ltd; Second Cross Defendant: ACN 006 475 056 Pty Limited; Third Cross Defendant: ACN 061 447 621 Pty Limited; Fourth Cross Defendant: GE Power NZ Holdings Pty Ltd; Fifth Cross Defendant: UGL Rail Pty Ltd; Sixth Cross Defendant: AECOM Services Pty Ltd
Jurisdiction
Australia
Judgment Date
22 July 2022
Procedural Posture
Civil / Interlocutory Application for Amendment of Pleadings
Outcome
Leave granted in part; amendments permitted subject to deletions and reservation of timing issue; costs orders against plaintiffs.
Legal Topics
Pleadings, Amendment, Design Deficiency, Construction Defects
Civil Procedure Pleadings Amendment Design Deficiency Construction Defects

Case Brief

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Parties

LCT-MRE Nominees Pty Ltd (as trustee of the LCT-MRE Trust and in its personal capacity)

First Plaintiff

LCT-MRE Pty Ltd

Second Plaintiff

Thiess Pty Ltd

First Defendant | First Cross Claimant

John Holland Pty Ltd

Second Defendant | Second Cross Claimant

CIMIC Group Ltd

Third Defendant

WSP Australia Pty Ltd

First Cross Defendant

ACN 006 475 056 Pty Limited

Second Cross Defendant

ACN 061 447 621 Pty Limited

Third Cross Defendant

GE Power NZ Holdings Pty Ltd

Fourth Cross Defendant

UGL Rail Pty Ltd

Fifth Cross Defendant

AECOM Services Pty Ltd

Sixth Cross Defendant

Procedural Posture

Civil / Interlocutory Application for Amendment of Pleadings

Legal Issues

  1. 1 Whether plaintiffs should be permitted to amend pleadings to allege design and construction defects
  2. 2 Whether specific amendments should be allowed relating to contractor's obligations and involvement of non-parties
  3. 3 Whether amendments would result in irremediable prejudice to defendants

Ratio Decidendi

Leave to amend pleadings was granted except for amendments referring to mix design and curing decisions involving non-parties, as their late inclusion would prejudice defendants by loss of opportunity to cross-claim against relevant subcontractors who may now be statute barred; deletion of specified paragraphs ordered and leave subject to possible revocation if future prejudice is identified.

Court Disposition

Leave granted in part; amendments permitted subject to deletions and reservation of timing issue; costs orders against plaintiffs.

Orders

  • Leave granted to plaintiffs to file Amended Technology and Construction List Statement with specified paragraphs deleted: Paragraph 69, particulars (i)(d)(1) and (2); Paragraph 71B(d); Paragraph 71F(c).
  • Reserve to the trial judge the question of when the amendments take effect.