Marahra Holdings Pty Limited v Insurance Australia Limited [2024] NSWSC 1368

Supreme Court New South Wales

Medium Neutral Citation: Marahra Holdings Pty Limited v Insurance Australia Limited [2024] NSWSC 1368 Hearing dates: 17 October 2024 Date of orders: 30 October 2024 Decision date: 30 October 2024 Jurisdiction: Common Law Before: Schmidt AJ Decision: (1) Leave to amend the statement of claim in terms finally pressed is granted; (2) Insurance Australia have leave to file a further amended defence within 28 days; and (3) Unless the parties approach within 7 days with short written submissions the defendant is to bear the plaintiff's costs, of the motion, as agreed or assessed. Catchwords: CIVIL PROCEDURE — admissions — admission of facts — withdrawal of admissions and other matters that operate for the benefit of another party — where defendant admitted certain matters pleaded in plaintiff's statement of claim — where plaintiff seeks to amend statement of claim to withdraw some factual matters admitted in defence — construction and application of Uniform Civil Procedure Rules 2005 (NSW) r 12.6 CIVIL PROCEDURE — pleadings — amendment — application for leave to file an amended statement of claim — where defence admitting pleaded matters has been filed — where plaintiff's legal representation changed — where new solicitor advised earlier pleaded matters not supported by available evidence including as to the cause of a fire — where plaintiff advised it was necessary to pursue a res ipsa loquitur case — whether amendment is purely tactical — whether leave to amend ought be granted — whether proposed amended statement of claim sufficiently pleads plaintiff's case — leave granted Legislation Cited: Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64 Corporations Act 2001 (Cth), s 601AG Evidence Act 1995 (NSW) Insurance Contracts Act 1984 (Cth), s 51 Work Health and Safety Act 2011 (NSW), s 195 Uniform Civil Procedure Rules 2005 (NSW), rr 12.6, 14.4, 14.5, 14.7, 14.8, 14.14, 14.26, 15.1, 17.7 Cases Cited: Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia [2001] NSWCA 243 Chandler v Water Corporation [2001] WASC 166 Drabsch v Switzerland General Insurance Co Ltd (Supreme Court (NSW), 16 October 1996, unrep) Inglis v English Language Company Australia Pty Ltd [2022] NSWSC 1538 Kelly v Mina [2014] NSWCA 9 Khouri v National Australia Bank Ltd [2007] NSWSC 987 Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135; [2002] NSWCA 44 Maile v Rafiq [2005] NSWCA 410 Namberry Craft Pty Ltd v Watson [2011] VSC 136 Ritz Hotel Ltd v Charles of the Ritz Ltd (No 20) (1988) 14 NSWLR 124 Schellenberg v Tunnell Holdings Pty Limited (2000) 200 CLR 121; [2000] HCA 18 Sergi v Sergi [2019] NSWSC 865 Category: Principal judgment Parties: Marahra Holdings Pty Limited (Plaintiff) Insurance Australia Limited (Defendant) Representation: Counsel: A Djurdjevic (Plaintiff) R Perla (Defendant)