Admiral 1 Pty Limited & Ors v Leighton Contractors Pty Limited [2006] NSWSC 30

Admiral 1 Pty Limited & Ors v Leighton Contractors Pty Limited [2006] NSWSC 30

The defendant had produced insufficient new material, and no very special cause or material alteration in the parties' position, to justify setting aside Barrett J's considered interlocutory separate question orders. The plaintiffs were entitled to seek an early determination of their rights in respect of the $4.5 million undertaking before the possible clause 42.6 date, and the defendant's proposed undertakings did not remove that practical need. The newly proposed separate question also risked appeal and fragmentation. Leave to amend was nevertheless appropriate on costs terms, with the existing separate hearing expanded to include the issues raised by the cross-claim amendments.

Jurisdiction
Australia
Judgment Date
03 February 2006
Procedural Posture
Practice and Procedure Application Concerning Variation of Interlocutory Separate Question Orders / Interlocutory Notice of Motion
Outcome
Application to set aside Barrett J's separate question orders dismissed; amendments to amended defence and cross-claim allowed on terms; separate question trial to include issues raised by the amendments to the cross-claim.
Legal Topics
['application to Vary Interlocutory Orders of Another Judge' 'separate Question Orders' 'leave to Amend Defence and Cross Claim' 'undertakings and Security Under a Design and Construct Contract']
['practice and Procedure' 'equity' 'technology and Construction'] ['application to Vary Interlocutory Orders of Another Judge' 'separate Question Orders' 'leave to Amend Defence and Cross Claim' 'undertakings and Security Under a Design and Construct Contract']

Case Brief

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Procedural Posture

Practice and Procedure Application Concerning Variation of Interlocutory Separate Question Orders / Interlocutory Notice of Motion

Legal Issues

  1. 1 ['Whether the order made by Barrett J on 3 November 2005 that proceedings on the amended summons be tried separately from proceedings on the cross-claim should be set aside.' 'Whether a differently formulated separate question should be ordered before further trials in the proceedings.' 'Whether the defendant should be granted leave to amend its amended defence and cross-claim, and on what terms.' 'Whether the separate hearing should include issues raised by the amendments to the cross-claim.']

Ratio Decidendi

The defendant had produced insufficient new material, and no very special cause or material alteration in the parties' position, to justify setting aside Barrett J's considered interlocutory separate question orders. The plaintiffs were entitled to seek an early determination of their rights in respect of the $4.5 million undertaking before the possible clause 42.6 date, and the defendant's proposed undertakings did not remove that practical need. The newly proposed separate question also risked appeal and fragmentation. Leave to amend was nevertheless appropriate on costs terms, with the existing separate hearing expanded to include the issues raised by the cross-claim amendments.

Court Disposition

Application to set aside Barrett J's separate question orders dismissed; amendments to amended defence and cross-claim allowed on terms; separate question trial to include issues raised by the amendments to the cross-claim.

Orders

  • ['Application to set aside the order made by Barrett J on 3 November 2005 dismissed.' 'Defendant granted leave to amend its amended defence and cross-claim on terms that it pay the costs of and occasioned by the amended pleadings.' 'Orders of Barrett J varied so that the separate hearing includes the proceedings on...