Alstom Australia Ltd v NAP Acoustics Pty Ltd [2004] NSWSC 217

Alstom Australia Ltd v NAP Acoustics Pty Ltd [2004] NSWSC 217

Although the plaintiff's present evidence did not establish liability against the second defendant and the time for evidence under the pre-trial timetable had passed, the second defendant did not meet the heavy General Steel burden. It remained possible that evidence from the first defendant, late evidence permitted in the interests of justice, or cross-examination of the plaintiff's experts could support the pleaded case against the second defendant. The principles in Wickstead v Browne were not confined to tort claims and applied notwithstanding the separate contractual causes of action, making summary dismissal premature.

Jurisdiction
Australia
Judgment Date
26 March 2004
Procedural Posture
Contract Proceedings Alleging Breaches of Separate Sub Contracts / Second Defendant's Application for Summary Dismissal Under Part 13 Rule 5 of the Supreme Court Rules
Outcome
Application dismissed with costs.
Legal Topics
['summary Dismissal' 'no Reasonable Cause of Action' 'separate Defendants' 'pre Trial Evidence' 'sub Contracts']
['practice and Procedure' 'contract Law' 'technology and Construction'] ['summary Dismissal' 'no Reasonable Cause of Action' 'separate Defendants' 'pre Trial Evidence' 'sub Contracts']

Case Brief

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Procedural Posture

Contract Proceedings Alleging Breaches of Separate Sub Contracts / Second Defendant's Application for Summary Dismissal Under Part 13 Rule 5 of the Supreme Court Rules

Legal Issues

  1. 1 ['Whether the further amended summons disclosed a reasonable cause of action against the second defendant.' 'Whether the absence of plaintiff evidence presently supporting liability against the second defendant justified summary dismissal before trial.' 'Whether the principles concerning summary dismissal of one of several defendants applied where the pleaded claims were independent claims for breach of separate contracts.']

Ratio Decidendi

Although the plaintiff's present evidence did not establish liability against the second defendant and the time for evidence under the pre-trial timetable had passed, the second defendant did not meet the heavy General Steel burden. It remained possible that evidence from the first defendant, late evidence permitted in the interests of justice, or cross-examination of the plaintiff's experts could support the pleaded case against the second defendant. The principles in Wickstead v Browne were not confined to tort claims and applied notwithstanding the separate contractual causes of action, making summary dismissal premature.

Court Disposition

Application dismissed with costs.

Orders

  • ["The second defendant's claim for an order of dismissal under Part 13 rule 5 is dismissed with costs."]