The Trust Company Ltd v VISA Global Logistics Pty Ltd (No 2) [2017] NSWSC 326

The Trust Company Ltd v VISA Global Logistics Pty Ltd (No 2) [2017] NSWSC 326

It is not appropriate at this interlocutory stage to conclude that the Owner's proposed amended defence alleging duty of care and vulnerability is so obviously untenable or groundless that leave to amend should be refused. The question of vulnerability is best reserved for trial, subject to particular qualifications about the pleaded shortcomings in contractual protections.

Jurisdiction
Australia
Judgment Date
31 March 2017
Procedural Posture
Commercial List Proceeding / Interlocutory Application for Leave to Amend Defence to Cross Claim
Outcome
Leave to amend granted, with qualifications.
Legal Topics
['leave to Amend Defence' 'duty of Care to Avoid Economic Loss' 'vulnerability' 'apportionable Claim Under Civil Liability Act 2002 (nsw)']
['practice and Procedure' 'torts'] ['leave to Amend Defence' 'duty of Care to Avoid Economic Loss' 'vulnerability' 'apportionable Claim Under Civil Liability Act 2002 (nsw)']

Case Brief

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Procedural Posture

Commercial List Proceeding / Interlocutory Application for Leave to Amend Defence to Cross Claim

Legal Issues

  1. 1 ['Whether the cross-defendant should be given leave to amend defence to cross-claim to allege duty of care owed by builder to cross-claimant.' 'Whether the cross-defendant has no prospect of demonstrating vulnerability for purposes of duty of care owed to avoid economic loss.']

Ratio Decidendi

It is not appropriate at this interlocutory stage to conclude that the Owner's proposed amended defence alleging duty of care and vulnerability is so obviously untenable or groundless that leave to amend should be refused. The question of vulnerability is best reserved for trial, subject to particular qualifications about the pleaded shortcomings in contractual protections.

Court Disposition

Leave to amend granted, with qualifications.

Orders

  • ['The Owner (cross-defendant/applicant) is granted leave to amend its defence to the cross-claim as sought, subject to removal of proposed par 32(p)(ii) from the pleading.' 'Costs of the applications to be costs in the cause.']