NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 969

New South Wales Supreme Court

CITATION : NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 969

HEARING DATE(S) : 27 August 2010

JUDGMENT DATE : 2 September 2010

JUDGMENT OF : Harrison J

DECISION : The notices of motion filed by the first and second defendants seeking leave respectively to withdraw admissions made by the first defendant in paragraph 10 of its defence filed 9 November 2006 and by the second defendant in paragraph 5 of its defence filed 4 December 2006 to the amended statement of claim filed 26 September 2006 should be dismissed with costs.

CATCHWORDS : PRACTICE & PROCEDURE – UCPR 12.6 – admissions – withdrawal of admissions – application for leave – whether defendants entitled to withdraw an admission that they jointly contracted with a third party for aerial spraying on the plaintiff's land – whether withdrawal necessary to expose real issues in dispute – whether true position was that separate contracts entered creating several liability – whether Court liable to determine an issue based upon a fiction unless leave granted - delay – where admissions made five and a half years previously – actual and presumptive prejudice – leave refused.

LEGISLATION CITED : Uniform Civil Procedure Rules Civil Procedure Act 2005

CATEGORY : Procedural and other rulings

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 (2009) 239 CLR 175 Bank of Western Australia v Salmon [No 1] [2009] NSWSC 224 Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 CASES CITED : Drabsch v Switzerland General Insurance Co Ltd (Supreme Court of New South Wales Santow J 16 October 1996 unreported) Maile v Rafiq [2005] NSWCA 410 The Nominal Defendant v Gabriel [2007] NSWCA 52 (2007) 71 NSWLR 150