Port Waratah Coal Services Ltd v Avopiling (NSW) Pty Ltd [2016] NSWSC 1832

Port Waratah Coal Services Ltd v Avopiling (NSW) Pty Ltd [2016] NSWSC 1832

Leave to amend was granted because PWCS provided a satisfactory explanation for the timing of the application, acted promptly, and the proposed amendments reflected issues already raised by defendants which could give PWCS a justifiable claim against the insurers for the full $37 million. Although the amendments created real prejudice concerns for the insurers, those concerns could be accommodated by directions and a later opportunity to seek vacation of the trial date on clear evidence, rather than by refusing leave immediately.

Jurisdiction
Australia
Judgment Date
12 December 2016
Procedural Posture
Equity Technology and Construction List; Procedural and Other Ruling / Application for Leave Further to Amend List Statement
Outcome
Leave further to amend the list statement granted.
Legal Topics
['leave to Amend List Statement' 'contractors All Risk Policy' 'construction Defects' 'trial Preparation' 'expert Evidence']
['practice and Procedure' 'insurance' 'construction'] ['leave to Amend List Statement' 'contractors All Risk Policy' 'construction Defects' 'trial Preparation' 'expert Evidence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Technology and Construction List; Procedural and Other Ruling / Application for Leave Further to Amend List Statement

Legal Issues

  1. 1 ['Whether leave should be granted to further amend the list statement shortly before an eight-week hearing fixed for mid February 2017.' 'Whether the proposed amendments, which could increase the claim against the insurers from $11.9 million to $37 million, would cause unfair detriment to the insurers.' "Whether the insurers' need to consider and possibly obtain expert evidence required refusal of leave or vacating the hearing date."]

Ratio Decidendi

Leave to amend was granted because PWCS provided a satisfactory explanation for the timing of the application, acted promptly, and the proposed amendments reflected issues already raised by defendants which could give PWCS a justifiable claim against the insurers for the full $37 million. Although the amendments created real prejudice concerns for the insurers, those concerns could be accommodated by directions and a later opportunity to seek vacation of the trial date on clear evidence, rather than by refusing leave immediately.

Court Disposition

Leave further to amend the list statement granted.

Orders

  • ['Leave to amend sought by PWCS, Downer, and Daracon should be granted with appropriate orders for costs thrown away.' 'The matter should be adjourned to a date early in the new term for directions before McDougall J.' 'Directions should be made for affidavits if an application is to be made as to the trial date.'...