IWD No 2 Pty Ltd v Level Orange Pty Ltd [2012] NSWSC 1394

IWD No 2 Pty Ltd v Level Orange Pty Ltd [2012] NSWSC 1394

Despite the lateness and lack of good reason for the amendment, a serious question of potential denial of natural justice outweighs the balance, and leave to amend should be granted subject to conditions as to costs.

Parties
Plaintiff: IWD No 2 Pty Limited; First Defendant: Level Orange Pty Limited; Second Defendant: Philip Martin; Third Defendant: Adjudicate Today Pty Limited; Fourth Defendant: Registrar General of New South Wales
Jurisdiction
Australia
Judgment Date
20 November 2012
Procedural Posture
Interlocutory Application / Leave to Amend Sought Prior to Final Determination
Outcome
Leave to amend granted (subject to conditions)
Legal Topics
Pleadings, Amendment, Construction Contract, Adjudication, Natural Justice
Practice and Procedure Building and Construction Pleadings Amendment Construction Contract Adjudication Natural Justice

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Parties

IWD No 2 Pty Limited

Plaintiff

Level Orange Pty Limited

First Defendant

Philip Martin

Second Defendant

Adjudicate Today Pty Limited

Third Defendant

Registrar General of New South Wales

Fourth Defendant

Procedural Posture

Interlocutory Application / Leave to Amend Sought Prior to Final Determination

Legal Issues

  1. 1 Whether leave to amend should be granted for a late claim of denial of natural justice in adjudication determination
  2. 2 Whether Adjudicator's failure to notify parties before making a determination on a basis not contended constituted denial of natural justice

Ratio Decidendi

Despite the lateness and lack of good reason for the amendment, a serious question of potential denial of natural justice outweighs the balance, and leave to amend should be granted subject to conditions as to costs.

Court Disposition

Leave to amend granted (subject to conditions)

Orders

  • Plaintiff granted leave to amend the Summons to plead denial of natural justice;
  • Plaintiff to pay the costs of Level Orange from and including 14 November 2012 on an indemnity basis;