Caboolture Park Shopping Centre Pty Limited v White Industries (Qld) Pty Limited [1989] FCA 880

Caboolture Park Shopping Centre Pty Limited v White Industries (Qld) Pty Limited [1989] FCA 880

Leave to appeal was refused because the amendment presented to the primary judge was considered as a whole and included broad pleading defects, while the applicant on appeal sought to argue only a narrowed pleading that had not been put separately below. In any event, sub-paragraphs 37(a) and 37(b) lacked precise pleading, particulars, or supporting material identifying the circumstances in which the sums were not provisional sums or the work was not undertaken pursuant to architect instructions. No miscarriage of the primary judge's discretion was demonstrated.

Jurisdiction
Australia
Judgment Date
08 February 1989
Procedural Posture
Application for Leave to Appeal Against an Interlocutory Judgment Refusing an Amendment to a Defence to a Cross Claim / Leave to Appeal
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
['amendment of Pleadings' 'leave to Appeal' 'interlocutory Judgment' 'defence to Cross Claim' 'conditions Precedent' 'provisional Sums' 'building Contract']
['civil Procedure' 'contract Law' 'construction Law'] ['amendment of Pleadings' 'leave to Appeal' 'interlocutory Judgment' 'defence to Cross Claim' 'conditions Precedent' 'provisional Sums' 'building Contract']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against an Interlocutory Judgment Refusing an Amendment to a Defence to a Cross Claim / Leave to Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from the interlocutory refusal to permit amendment of the defence to the cross-claim.' "Whether proposed sub-paragraphs 37(a) and 37(b), denying that claimed costs were provisional sums and denying that work was undertaken pursuant to the architect's instruction, were sufficiently precise to justify interference with the trial judge's discretion." 'Whether the applicant was seeking on leave to appeal a narrower and different pleading from the amendment placed before the primary judge.']

Ratio Decidendi

Leave to appeal was refused because the amendment presented to the primary judge was considered as a whole and included broad pleading defects, while the applicant on appeal sought to argue only a narrowed pleading that had not been put separately below. In any event, sub-paragraphs 37(a) and 37(b) lacked precise pleading, particulars, or supporting material identifying the circumstances in which the sums were not provisional sums or the work was not undertaken pursuant to architect instructions. No miscarriage of the primary judge's discretion was demonstrated.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • ['The application for leave to appeal is dismissed with costs.']