H & D Retail Pty Ltd v TransMS Pty Ltd [2021] NSWSC 87

H & D Retail Pty Ltd v TransMS Pty Ltd [2021] NSWSC 87

Leave to withdraw the admissions was granted because, although the explanation was less than satisfactory, the admissions concerned matters of law and were made through insufficient attention by TransMS Pty Ltd's legal advisers to material contractual provisions. Refusing leave would deprive TransMS Pty Ltd of the opportunity to argue that the 'only terms' and 'entire agreement' clauses operated according to their terms, while any prejudice to H & D Retail Pty Ltd could be addressed by costs and by permitting it to supplement its evidence in reply.

Jurisdiction
Australia
Judgment Date
12 February 2021
Procedural Posture
Equity Commercial List; Application to Withdraw Admissions / Defendant's Notice of Motion Filed 30 October 2020 Seeking Leave Under Uniform Civil Procedure Rules 2005 (nsw), Rule 12.6(1)
Outcome
Leave granted to withdraw admission.
Legal Topics
['withdrawal of Admissions' 'commercial List Response' 'entire Agreement Clause' 'only Terms Clause' 'costs Thrown Away']
['practice and Procedure' 'commercial Law' 'contract Law'] ['withdrawal of Admissions' 'commercial List Response' 'entire Agreement Clause' 'only Terms Clause' 'costs Thrown Away']

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Procedural Posture

Equity Commercial List; Application to Withdraw Admissions / Defendant's Notice of Motion Filed 30 October 2020 Seeking Leave Under Uniform Civil Procedure Rules 2005 (nsw), Rule 12.6(1)

Legal Issues

  1. 1 ['Whether the defendant should be granted leave to withdraw admissions made in its Commercial List Response concerning the constituents of the contract between the parties.' 'Whether an adequate explanation was given for the making of the admissions.' "Whether the interests of justice required that leave be granted despite the admissions having resulted from insufficient attention by the defendant's legal advisers." 'Whether any prejudice to the plaintiff could be addressed by costs and procedural directions.']

Ratio Decidendi

Leave to withdraw the admissions was granted because, although the explanation was less than satisfactory, the admissions concerned matters of law and were made through insufficient attention by TransMS Pty Ltd's legal advisers to material contractual provisions. Refusing leave would deprive TransMS Pty Ltd of the opportunity to argue that the 'only terms' and 'entire agreement' clauses operated according to their terms, while any prejudice to H & D Retail Pty Ltd could be addressed by costs and by permitting it to supplement its evidence in reply.

Court Disposition

Leave granted to withdraw admission.

Orders

  • ["Orders made in accordance with paragraphs 1 to 4 of the defendant's notice of motion of 30 October 2020." "The defendant is to pay the plaintiff's costs of that notice of motion and the costs thrown away by the withdrawal of the admissions referred to in the notice of motion." 'Liberty granted to the plaintiff to...