Norcross Pictorial Calendars Pty Ltd v Central Coast Council [2020] NSWSC 1140

Norcross Pictorial Calendars Pty Ltd v Central Coast Council [2020] NSWSC 1140

The defendant's proposed amendment raised a detailed and factually complex alternative causation case that had not been foreshadowed before trial. Although the relevant witness evidence and documents were known, that was a reason for the Council to have amended its Response well before trial. The plaintiffs were taken by surprise and could not meet the proposed case without an adjournment, and it would not be just to impose an adjournment on them. Leave to amend was therefore refused.

Jurisdiction
Australia
Judgment Date
25 August 2020
Procedural Posture
Equity Technology and Construction List; Practice and Procedure Application for Leave to Amend List Response / During the Hearing, the Defendant Sought Leave to Amend Its Technology and Construction List Response
Outcome
Defendant's application to amend its Technology and Construction List Response is refused.
Legal Topics
['leave to Amend Pleadings' 'list Response' 'surprise' 'causation' 'adjournment']
['practice and Procedure' 'civil Procedure' 'technology and Construction'] ['leave to Amend Pleadings' 'list Response' 'surprise' 'causation' 'adjournment']

Case Brief

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Procedural Posture

Equity Technology and Construction List; Practice and Procedure Application for Leave to Amend List Response / During the Hearing, the Defendant Sought Leave to Amend Its Technology and Construction List Response

Legal Issues

  1. 1 ["Whether the defendant should be granted leave to amend its Technology and Construction List Response during the hearing to plead that delay in practical completion was caused by matters other than the Council's rescission of the easement resolution." 'Whether the proposed amendment would take the plaintiffs by surprise and require an adjournment.' 'Whether cross-examination should be permitted on issues raised only by the proposed amendment.']

Ratio Decidendi

The defendant's proposed amendment raised a detailed and factually complex alternative causation case that had not been foreshadowed before trial. Although the relevant witness evidence and documents were known, that was a reason for the Council to have amended its Response well before trial. The plaintiffs were taken by surprise and could not meet the proposed case without an adjournment, and it would not be just to impose an adjournment on them. Leave to amend was therefore refused.

Court Disposition

Defendant's application to amend its Technology and Construction List Response is refused.

Orders

  • ['The application by the defendant to amend its Response, in accordance with MFI 3, is refused.' 'Cross-examination of Mr Cochrane, or any other witness, on the issues sought to be raised by the amendment will not be permitted.' 'The Council should pay the costs of its application to amend the Response.']