DJZ Constructions Pty Ltd v Paul Pritchard trading as Pritchard Law Group (No 2) [2009] NSWSC 215

DJZ Constructions Pty Ltd v Paul Pritchard trading as Pritchard Law Group (No 2) [2009] NSWSC 215

The claim concerning the 1 February 2001 deed arose from substantially the same facts as the existing professional negligence claim pleaded in the further amended statement of claim, so s 65 of the Civil Procedure Act 2005 applied. The dictates of justice required the ordinary operation of s 65(3), with the amendments taking effect from commencement of the proceedings, because otherwise the defendant could rely on the February 2001 deed to defend the negligence claim while the plaintiff's corresponding claim about that deed would be statute barred. Deferral would unnecessarily add to costs and conflict with the overriding purpose of the Civil Procedure Act 2005.

Jurisdiction
Australia
Judgment Date
01 April 2009
Procedural Posture
Professional Negligence Proceeding / Interlocutory Application Concerning the Date From Which Amendments to a Further Amended Statement of Claim Take Effect
Outcome
Defendant's application refused.
Legal Topics
['amendment of Pleadings' 'statute Barred Cause of Action' 'civil Procedure Act 2005 Ss 64 and 65' 'backdating Amendments to Commencement of Proceedings' 'overriding Purpose']
['civil Procedure' 'professional Negligence' 'limitation of Actions'] ['amendment of Pleadings' 'statute Barred Cause of Action' 'civil Procedure Act 2005 Ss 64 and 65' 'backdating Amendments to Commencement of Proceedings' 'overriding Purpose']

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Procedural Posture

Professional Negligence Proceeding / Interlocutory Application Concerning the Date From Which Amendments to a Further Amended Statement of Claim Take Effect

Legal Issues

  1. 1 ['Whether s 65 of the Civil Procedure Act 2005 applied to amendments to the further amended statement of claim relating to the 1 February 2001 deed.' 'Whether the amendments should be taken to have effect from the date on which the proceedings were commenced.' 'Whether the Court should defer deciding the effective date of the amendments until the hearing of the merits.']

Ratio Decidendi

The claim concerning the 1 February 2001 deed arose from substantially the same facts as the existing professional negligence claim pleaded in the further amended statement of claim, so s 65 of the Civil Procedure Act 2005 applied. The dictates of justice required the ordinary operation of s 65(3), with the amendments taking effect from commencement of the proceedings, because otherwise the defendant could rely on the February 2001 deed to defend the negligence claim while the plaintiff's corresponding claim about that deed would be statute barred. Deferral would unnecessarily add to costs and conflict with the overriding purpose of the Civil Procedure Act 2005.

Court Disposition

Defendant's application refused.

Orders

  • ["The defendant's application is refused."]