Rennie Golledge Pty Limited v Ballard [2012] NSWCA 376

Rennie Golledge Pty Limited v Ballard [2012] NSWCA 376

The appeal was dismissed because the proposed amendment to plead proportionate liability was inconsistent with the unvaried consent judgment for the plaintiffs for damages to be assessed, which admitted liability for the whole of the respondents' loss or damage, and in any event the discretionary refusal of the amendment was correct. The amendment was sought very late without an adequate explanation, would cause delay and real prejudice to the respondents, and had poor prospects because the respondents could not be concurrent wrongdoers in respect of their own loss and the evidence did not show a seriously arguable case that the builder was a concurrent wrongdoer whose negligence caused...

Jurisdiction
Australia
Judgment Date
10 October 2012
Procedural Posture
Application for Leave to Appeal From District Court Interlocutory Decision Refusing Leave to Amend Defence / Court of Appeal; Leave Granted and Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed with costs.
Legal Topics
['amendment of Defence' 'consent Judgment for Damages to Be Assessed' 'apportionable Claims' 'concurrent Wrongdoer' 'contributory Negligence' 'surveyor Negligence' 'prejudice From Late Amendment' 'civil Procedure Act Case Management']
['practice and Procedure' 'torts' 'civil Liability' 'proportionate Liability'] ['amendment of Defence' 'consent Judgment for Damages to Be Assessed' 'apportionable Claims' 'concurrent Wrongdoer' 'contributory Negligence' 'surveyor Negligence' 'prejudice From Late Amendment' 'civil Procedure Act Case Management']

Case Brief

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Procedural Posture

Application for Leave to Appeal From District Court Interlocutory Decision Refusing Leave to Amend Defence / Court of Appeal; Leave Granted and Appeal Dismissed

Legal Issues

  1. 1 ['Whether the applicant could amend its defence on the eve of an assessment of damages hearing to plead proportionate liability under Pt 4 of the Civil Liability Act 2002 (NSW).' 'Whether a consent judgment for the plaintiffs for damages to be assessed precluded the applicant from later alleging apportionment without seeking to vary or set aside that judgment.' 'Whether the respondents, by alleged contributory negligence or termination of building contracts, could be treated as concurrent wrongdoers in relation to their own loss.' 'Whether the builder had been shown to have a realistic prospect of being a concurrent wrongdoer with the applicant.' 'Whether the discretionary considerations, including delay, prejudice and prospects of success, justified refusing leave to amend.']

Ratio Decidendi

The appeal was dismissed because the proposed amendment to plead proportionate liability was inconsistent with the unvaried consent judgment for the plaintiffs for damages to be assessed, which admitted liability for the whole of the respondents' loss or damage, and in any event the discretionary refusal of the amendment was correct. The amendment was sought very late without an adequate explanation, would cause delay and real prejudice to the respondents, and had poor prospects because the respondents could not be concurrent wrongdoers in respect of their own loss and the evidence did not show a seriously arguable case that the builder was a concurrent wrongdoer whose negligence caused...

Court Disposition

Leave to appeal granted; appeal dismissed with costs.

Orders

  • ['Grant leave to appeal.' 'Direct Applicant to file, within seven (7) days, a Notice of Appeal in terms of the draft Notice of Appeal appearing at page 27 of the White Book.' 'Dismiss the appeal.' "Order the Applicant to pay the Respondents' costs of this appeal." 'Reserve Reasons.']