Cave v Allen Jack & Cottier Architects Pty Ltd [2014] NSWSC 316

Cave v Allen Jack & Cottier Architects Pty Ltd [2014] NSWSC 316

Leave to file and serve the second further amended statement of claim was granted because, despite delay and previous amendments, the plaintiff provided adequate explanations for the relevant delays for most amendments, the matter had no allocated trial date, other litigants would not be inconvenienced, the defendants had not shown sufficient irremediable prejudice, and the challenged amendments were not shown to be hopeless. The question of the date on which the amendments take effect was reserved to the trial judge because limitation issues were hotly contested. Separate determination was refused because the proposed questions would not resolve all issues, limitation questions depended...

Jurisdiction
Australia
Judgment Date
01 April 2014
Procedural Posture
Common Law Procedural Application for Leave to Further Amend a Statement of Claim and for Separate Determination of Questions / Notice of Motion Filed 19 August 2013 Determined Before Trial
Outcome
Plaintiff granted leave to file and serve the second further amended statement of claim; separate determination of questions refused; costs reserved.
Legal Topics
['amendment of Pleadings' 'separate Determination of Questions' 'limitation Periods' 'building Defects' 'professional Negligence']
['practice and Procedure' 'contract' 'tort' 'building and Construction'] ['amendment of Pleadings' 'separate Determination of Questions' 'limitation Periods' 'building Defects' 'professional Negligence']

Case Brief

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Procedural Posture

Common Law Procedural Application for Leave to Further Amend a Statement of Claim and for Separate Determination of Questions / Notice of Motion Filed 19 August 2013 Determined Before Trial

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to file and serve a second further amended statement of claim.' "Whether the plaintiff adequately explained delay in seeking amendments concerning Allen Jack & Cottier's alleged failure to advise about Taylor Thomson Whitting's terms of engagement." "Whether amendments alleging failure by Allen Jack & Cottier and Greenwood Constructions to advise about Taylor Thomson Whitting's competence should be allowed." 'Whether amendments against Greenwood Constructions concerning footings, wind forces, tie downs and building defects should be allowed.' 'Whether the date on which the amendments take effect should be reserved to the trial judge under s 65(3) of the Civil Procedure Act 2005 (NSW).' 'Whether questions concerning the Conditions of Engagement and limitation defences should be determined separately before trial.']

Ratio Decidendi

Leave to file and serve the second further amended statement of claim was granted because, despite delay and previous amendments, the plaintiff provided adequate explanations for the relevant delays for most amendments, the matter had no allocated trial date, other litigants would not be inconvenienced, the defendants had not shown sufficient irremediable prejudice, and the challenged amendments were not shown to be hopeless. The question of the date on which the amendments take effect was reserved to the trial judge because limitation issues were hotly contested. Separate determination was refused because the proposed questions would not resolve all issues, limitation questions depended...

Court Disposition

Plaintiff granted leave to file and serve the second further amended statement of claim; separate determination of questions refused; costs reserved.

Orders

  • ['The plaintiff is granted leave to file and serve the second further amended statement of claim within 14 days.' 'Pursuant to s 65(3) of the Civil Procedure Act 2005 (NSW) the question of the date on which the amendments take effect are reserved to the trial judge.' 'Separate determination of questions (i)(a),...