Zheng v Ianni & Ors (No.2) [2021] NSWDC 511

Zheng v Ianni & Ors (No.2) [2021] NSWDC 511

Except for the unopposed insubstantial amendments adding reference to the fourth defendant, the proposed amendments were refused because the pleaded legal consequences were inarguable and therefore futile: an instruction for Nick Daoud to leave the site did not objectively support abandonment, no supervening event supporting frustration was alleged, and termination under cl 29 was unavailable without evidence of a notice of default. The lateness of the application and potential prejudice would also have told against leave if necessary.

Jurisdiction
Australia
Judgment Date
24 September 2021
Procedural Posture
Civil Proceeding; Application to Amend Defence / Application Made on Day 8 of the Hearing, After Closing Written Submissions and During the Third and Fourth Defendants' Closing Oral Address
Outcome
Application to amend defence refused with costs, except for unopposed insubstantial amendments adding reference to the fourth defendant.
Legal Topics
['amendment of Defence' 'futility of Amendments' 'abandonment of Contract' 'frustration of Contract' 'contractual Termination' 'late Amendment and Prejudice' 'building Site Injury']
['civil Procedure' 'contract Law' 'tort Law'] ['amendment of Defence' 'futility of Amendments' 'abandonment of Contract' 'frustration of Contract' 'contractual Termination' 'late Amendment and Prejudice' 'building Site Injury']

Case Brief

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Procedural Posture

Civil Proceeding; Application to Amend Defence / Application Made on Day 8 of the Hearing, After Closing Written Submissions and During the Third and Fourth Defendants' Closing Oral Address

Legal Issues

  1. 1 ['Whether the third and fourth defendants should be permitted under s 64 of the Civil Procedure Act 2005 (NSW) to amend their defence.' 'Whether proposed amendments alleging that the building contract was abandoned or frustrated were arguable or futile.' 'Whether proposed amendments alleging termination under cl 29 of the contract were arguable or futile.' 'Whether the lateness of the amendment application and potential prejudice to the plaintiff weighed against leave to amend.']

Ratio Decidendi

Except for the unopposed insubstantial amendments adding reference to the fourth defendant, the proposed amendments were refused because the pleaded legal consequences were inarguable and therefore futile: an instruction for Nick Daoud to leave the site did not objectively support abandonment, no supervening event supporting frustration was alleged, and termination under cl 29 was unavailable without evidence of a notice of default. The lateness of the application and potential prejudice would also have told against leave if necessary.

Court Disposition

Application to amend defence refused with costs, except for unopposed insubstantial amendments adding reference to the fourth defendant.

Orders

  • ['The unopposed amendments permitting the additional reference to the fourth defendant are allowed.' 'Subject to permitting the insubstantial amendment to paragraphs 5 and 6 regarding the addition of the fourth defendant, the application to amend is refused with costs.']