MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 1) [2010] NSWSC 241

New South Wales Supreme Court

CITATION : MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 1) [2010] NSWSC 241

HEARING DATE(S) : 23 March 2010

JUDGMENT DATE : 23 March 2010

JUDGMENT OF : Johnson J at 1

DECISION : The application to amend the Statement of Claim in accordance with MFI 6 is refused.

CATCHWORDS : PROCEDURE - claim for damages for misfeasance in public office and negligence - planning decision by Council - Plaintiffs apply to amend Statement of Claim during final hearing - consequence of amendment would be adjournment of hearing - applicable principles - application refused

LEGISLATION CITED : Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005

CATEGORY : Procedural and other rulings

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 CASES CITED : Grivas v Harrison [2010] NSWSC 208 Leinenga v Logan City Council [2006] QSC 294

MM Constructions (Aust) Pty Limited (First Plaintiff) PARTIES : Milan Maruncic (Second Plaintiff) Port Stephens Council (Defendant)

FILE NUMBER(S) : SC 2008/289298

COUNSEL : Mr B Toomey QC; Mr E Romaniuk (Plaintiffs) Mr M Joseph SC; Mr S Glascott (Defendant)

SOLICITORS : Creagh & Creagh (Plaintiffs) DLA Phillips Fox (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Johnson J

23 March 2010

2008/289298 MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 1)

JUDGMENT (on application to amend Statement of Claim - see T79) 1 JOHNSON J: By Statement of Claim filed on 23 May 2008 the Plaintiffs, MM Constructions (Aust) Pty Ltd and Milan Maruncic, sue the Defendant, the Port Stephens Council, for misfeasance in public office and negligence. The proceedings relate to the Defendant's consideration, in a period up to 2007, of aspects of the Plaintiffs' development project at Church Street, Nelson Bay. 2 The Defendant sought, and was provided with, further and better particulars of the Plaintiffs' claim by letter dated 20 November 2008 from the Plaintiffs' solicitors (see MFI 4). On 13 May 2009 the Defendant filed a Defence in the proceedings. 3 In May 2009, the parties sought a hearing date with a five-day estimate. The matter was listed for hearing commencing 2 November 2009, but that date was vacated and a further hearing date of 7 December 2009 was fixed. The proceedings were before Price J for certain interlocutory purposes on 4 September 2009, and Rothman J for other interlocutory purposes on 1 and 2 December 2009. The Defendant sought to amend its Defence and this, in due course, has occurred. As it happened, the matter was not reached on 7 December 2009 and a further hearing date was fixed, commencing 22 March 2010, still with a five-day estimate. 4 Upon learning that the matter had been allocated to me, I directed last week that it be listed at 2.00 pm on 19 March 2010 for directions, so that I could acquire some understanding of the issues in the proceedings, ensure that interlocutory orders had been complied with and assure myself that the matter was ready to proceed. On that occasion, senior counsel on each side appeared. There was some discussion, but there was no indication that the matter was not ready for hearing this week, subject to certain steps that would need to be taken. There was no indication whatsoever that the case to be advanced by the Plaintiffs would in some way vary from that pleaded and particularised by them in May 2008 and thereafter.