Boulus Constructions Pty Ltd v Warrumbungle Shire Council [2020] NSWSC 1847

Boulus Constructions Pty Ltd v Warrumbungle Shire Council [2020] NSWSC 1847

Leave to amend granted to the extent the plaintiff pleads the representations became express terms of the contract, or alternatively, that the contract should be rectified to include them. Leave refused for the hypothetical counterfactual pleading, as the plaintiff has not pleaded and cannot establish that the defendant would have accepted a higher tender; such pleading is speculative and not maintainable.

Parties
Plaintiff: Boulus Constructions Pty Ltd; Defendant: Warrumbungle Shire Council
Jurisdiction
Australia
Judgment Date
16 December 2020
Procedural Posture
Judicial Decision Interlocutory Application to Amend Pleadings / Application for Leave to Amend Technology and Construction List Statement
Outcome
Application for leave to amend List Statement allowed in part and refused in part.
Legal Topics
Amendment of Pleadings, Misleading or Deceptive Conduct, Rectification of Contract, Construction Contracts, Pleadings in Alternative, Statutory Interpretation
Civil Procedure Contract Law Equity Amendment of Pleadings Misleading or Deceptive Conduct Rectification of Contract Construction Contracts Pleadings in Alternative +1 more

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Parties

Boulus Constructions Pty Ltd

Plaintiff

Warrumbungle Shire Council

Defendant

Procedural Posture

Judicial Decision Interlocutory Application to Amend Pleadings / Application for Leave to Amend Technology and Construction List Statement

Legal Issues

  1. 1 Whether the plaintiff may amend its List Statement to plead reliance on alleged pre-contractual representations
  2. 2 Whether a pleading that but for the representations, plaintiff would have submitted a higher tender, and 'if' defendant accepted that tender would have entered a contract at a higher price, is maintainable
  3. 3 Whether the alleged representations became terms of the contract or the contract should be rectified to include them

Ratio Decidendi

Leave to amend granted to the extent the plaintiff pleads the representations became express terms of the contract, or alternatively, that the contract should be rectified to include them. Leave refused for the hypothetical counterfactual pleading, as the plaintiff has not pleaded and cannot establish that the defendant would have accepted a higher tender; such pleading is speculative and not maintainable.

Court Disposition

Application for leave to amend List Statement allowed in part and refused in part.

Orders

  • Leave granted to plead matters relating to the representations as contract terms or rectification.
  • Leave refused for amendments involving the counterfactual/hypothetical tender.