Loulach Developments Pty Ltd v Roads and Maritime Services [2018] NSWSC 1402

Supreme Court New South Wales

Medium Neutral Citation: Loulach Developments Pty Ltd v Roads and Maritime Services [2018] NSWSC 1402 Hearing dates: 11 September 2018 Decision date: 11 September 2018 Jurisdiction: Common Law Before: Leeming JA Decision: 1. The defendant be granted leave to file an amended defence in the form annexed to the notice of motion filed 6 September 2018 within seven days of today.

2. The plaintiff/respondent pay the costs of the defendant/applicant of the notice of motion filed 6 September 2018. Catchwords: PRACTICE – amendment – late application to amend defence – applicant gave unchallenged explanation for delay while respondent pointed to no evidence of prejudice – application granted Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-58 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Category: Consequential orders (other than Costs) Parties: Loulach Developments Pty Ltd (Plaintiff/Respondent) Roads and Maritime Services (Defendant/Applicant) Representation: Counsel: T Hale SC (Plaintiff/Respondent) N Kidd SC (Defendant/Applicant)

Solicitors: Madison Marcus (Plaintiff/Respondent) Makinson d'Apice Lawyers (Defendant/Applicant) File Number(s): 2015/167414 Publication restriction: Nil

ex tempore Judgment 1. HIS HONOUR: Before me is a contested application to amend a defence filed so long ago as 30 September 2015. The amendment is simple. In addition to deleting an allegation based upon the proportionate liability legislation, the defendant seeks to add proposed paragraph 68 which is in the following terms: "The defendant says, further, that any cause of action in negligence accrued more than six years before the commencement of these proceedings and is statute barred pursuant to s 14(1)(b) of the Limitation Act 1969." 1. The essential chronology for present purposes is that the plaintiff has brought proceedings by statement of claim filed on 5 June 2015, shortly before the expiration of six years following a grant of development consent to a building in Parramatta, which consent, the plaintiff claims, has been affected by what it says is erroneous advice provided to the consent authority by the predecessor to the defendant, Roads and Maritime Services, some time beforehand. 2. The opposition to the amendment is three-fold. First, it is said, and with some force, that the amendment is being made some three years after the statement of claim was filed, and only seven or so weeks before the trial, and that the explanation proffered by the defendant is lacking in detail and cogency. Secondly, although there has been the provision of particulars, explaining how it is said that damage was incurred more than six years before the commencement of proceedings, the plaintiff says that some aspects of that explanation are insufficiently clear for it to understand the case it has to meet should the amendment be allowed. Thirdly, and this is the plaintiff's principal point, it is said that permitting the amendments will cause the plaintiff to suffer prejudice, in so far as decisions have been made throughout the litigation to date on the basis that no limitation point is made by the defendant. 3. The unchallenged evidence of the solicitor with day-to-day conduct of the matter on behalf of the defendant is that the existence of a possible Limitation Act defence was not apparent to her, nor so far as she was aware, to any of the other lawyers acting on the matter for the defendant for the entirety of the period from mid 2015. Her evidence is that the existence of a possible defence only became apparent to her and the defendant's other lawyers for the first time in connection with the preparation for a mediation in June 2018. 4. I accept that explanation. It is the sworn evidence of the solicitor and no application was made to test it in cross-examination. It is not uncommon in the preparation of litigation for points to go unnoticed until shortly before a hearing or a mediation. 5. In relation to the potential lack of clarity in the particulars of the proposed defence, Mr Hale who appears for the plaintiff/respondent properly accepts that if on reflection there continues to be an absence in clarity, it will be open to him or, more accurately, his instructing solicitors to request further particulars in addition to those that were provided only fairly recently, on 5 September 2018. 6. As I said, the gravamen of the opposition is in the prejudice which is said to flow to the plaintiff if the amendment be allowed. The relevant prejudice, of course, does not turn on whether in fact there is a good limitation defence or otherwise. That is not prejudice for the purposes of the amendment. Implicitly accepting this, Mr Hale has submitted that forensic decisions had been made on the basis that no limitation point was in issue in these proceedings. He invited me to infer that the way in which Mr Simon Loulach's affidavit sworn 10 February 2016 had been drafted reflected the absence of a limitation defence. He suggested that perhaps the plaintiff might have advanced a purely documentary case had the statute of limitations been pleaded in the defence. 7. There is no evidence whatsoever before me of any forensic decisions having been made based upon the absence of a limitation defence. To the contrary, I would infer — and Mr Hale, when I raised this with him, in no way discouraged the inference — that this litigation was commenced in circumstances where the plaintiff was highly conscious of the possibility that it might be statute-barred if it delayed until a period more than six years following the grant of development consent. 8. Mr Loulach, in his affidavit, advances propositions as to the consideration of the potential for exploitation of his company's site, and the subsequent preparation of an application for development consent, which to my eyes — presently unencumbered by much of the detail which this litigation will involve — strikes me as entirely unexceptional. Of course the developer spent money prior to lodging its application for development consent, and spent further money in the course of progressing that application. Given the delay which had occurred between the grant of development consent and the commencement of proceedings, it was inevitable that that opportunity was perceived and those funds were spent more than six years prior to the commencement of the litigation. If — and this is something which I express no view about whatsoever — that in some fashion constitutes the availability of a cause of action, then the Limitation Act defence will be good. If, on the other hand, the cause of action only accrued no earlier than the grant of development consent, then there is nothing in the new allegation. But the point of present relevance is not only is there no evidence of any forensic decisions being made which might have been affected by the presence or absence of a Limitation Act defence, but further that, so far as I can see, there is nothing in Mr Loulach's affidavit — and that is the only material on behalf of the plaintiff to which attention has been pointed for the purpose of adjudicating upon this amendment application — which could have been affected by the presence or absence of a Limitation Act defence. 9. Accordingly the position before me is that there is lengthy delay in making an application to amend by the defendant, but the delay is explained in a way which is uncontested, and the real prejudice to which the plaintiff points is prejudice which, on examination, is unsupported by evidence and which does not appear on the face of the materials before me. To the extent that there is further prejudice by reason of lack of clarity in how it is alleged the proceeding is statute-barred, that is something that can be dealt with by the request for and provision of further particulars. In those circumstances all of the considerations driving ss 56-58 of the Civil Procedure Act 2005 (NSW) compel me to allow the amendment. Accordingly I will order that: "1. The defendant be granted leave to file an amended defence in the form annexed to the notice of motion filed 6 September 2018 within seven days of today." [Debate concerning costs] 1. I turn to costs. The defendant says that it was required, because consent was not forthcoming, to prepare an affidavit and to attend Court today. The plaintiff, after some discussion, maintains that the appropriate order is that there be no order as to costs. It points principally to the fact that the defendant was seeking an indulgence. 2. True it is that the defendant was seeking an indulgence. However, the need for the preparation of an affidavit and the attendance in court this afternoon was caused by the plaintiff's opposition to the amendment for more than six weeks before the motion was filed. That opposition was unsupported by any evidence and, as it has turned out, was unsuccessful. I see no reason to depart from the usual rule in UCPR r 42.1 that costs follow the event. The event today is the contested amendment. Accordingly I make this order: "2. The plaintiff/respondent pay the costs of the defendant/applicant of the notice of motion filed 6 September 2018."