Probuild Constructions (Aust) Pty Limited v Shade Systems Limited [2018] NSWSC 540

Probuild Constructions (Aust) Pty Limited v Shade Systems Limited [2018] NSWSC 540

Leave to amend was granted because it could not be said as a matter of law that Probuild's alleged use of litigation to pursue commercial gain was not conduct in trade or commerce, and the proposed unconscionable conduct defence under ss 20 and 21 of the Australian Consumer Law was not so factually weak at the outset as to justify peremptory rejection. Although the abuse of process defence appeared extraordinarily weak, allowing it would not lengthen the trial once leave was granted for the principal unconscionability argument. Possible loss of the hearing date did not justify refusing leave.

Jurisdiction
Australia
Judgment Date
24 April 2018
Procedural Posture
Application to Amend Technology and Construction List Response in Liquidated Damages Proceedings / Notice of Motion for Leave to Amend Before Hearing
Outcome
Leave to amend granted.
Legal Topics
['leave to Amend Pleading' 'unconscionable Conduct' 'conduct in Trade or Commerce' 'litigious Conduct' 'abuse of Process' 'security of Payment Adjudication']
['civil Procedure' 'australian Consumer Law' 'building and Construction' 'equity'] ['leave to Amend Pleading' 'unconscionable Conduct' 'conduct in Trade or Commerce' 'litigious Conduct' 'abuse of Process' 'security of Payment Adjudication']

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Procedural Posture

Application to Amend Technology and Construction List Response in Liquidated Damages Proceedings / Notice of Motion for Leave to Amend Before Hearing

Legal Issues

  1. 1 ["Whether Shade Systems should be granted leave to amend its Technology and Construction List Response to plead that Probuild's commencement and maintenance of the liquidated damages proceedings was unconscionable conduct in breach of ss 20 and 21 of the Australian Consumer Law." 'Whether the proposed pleading was bound to fail or so weak that leave to amend should be refused because the alleged conduct was litigation conduct rather than conduct in trade or commerce.' 'Whether the alternative abuse of process defence should be permitted as part of the amendments.' 'Whether delay to the fixed hearing date justified refusing leave to amend.']

Ratio Decidendi

Leave to amend was granted because it could not be said as a matter of law that Probuild's alleged use of litigation to pursue commercial gain was not conduct in trade or commerce, and the proposed unconscionable conduct defence under ss 20 and 21 of the Australian Consumer Law was not so factually weak at the outset as to justify peremptory rejection. Although the abuse of process defence appeared extraordinarily weak, allowing it would not lengthen the trial once leave was granted for the principal unconscionability argument. Possible loss of the hearing date did not justify refusing leave.

Court Disposition

Leave to amend granted.

Orders

  • ['Grant defendant leave to amend its Technology & Construction List Response.' "The defendant pay the plaintiff's costs of and incidental to and thrown away by reason of the amendment." 'The costs of the Notice of Motion are costs in the cause, except the costs of today, which are to be paid by the defendant in any...