Supreme Court - Trial Division

J M Kelly (Project Builders) Pty Ltd v Toga Development No. 31 Pty Ltd (No 6) [2014] QSC 262 (06/3651) Flanagan J 24 October 2014

Full-text: QSC14-262.pdf

Catchwords

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – AMENDMENT – where the proceedings were commenced over eight years ago – where two separate proceedings were commenced by the defendant and consolidated with the current proceedings – where a large number of allegations and claims in the plaintiff’s fourth further amended statement of claim were struck out – where the proceedings were being supervised – where there was a long history of non-compliance by the plaintiff – where the defendant filed its defence and counterclaim in April 2013 – where the plaintiff, for the first time, alleged a liquidated damages clause was a penalty in its reply and answer (“the penalty plea”) – where the plaintiff and defendant by counterclaim were seeking leave to file and serve a fifth further amended statement of claim including the penalty plea – where the plaintiff and defendant by counterclaim were seeking leave to amend the penalty plea in the reply and answer to avoid it being struck out – where the defendant was seeking to strike out specific pleadings in the statement of claim alleging they were inconsistent with prior court rulings – whether the plaintiff and defendant by counterclaim ought to have leave to amend the reply and answer and to file and serve a fifth further amended statement of claim – whether any pleadings in the statement of claim ought to be struck out as being inconsistent with prior court rulings

Uniform Civil Procedure Rules considered

Rule 5 — Philosophy — overriding obligations of parties and courtRule 379 — Disallowance of amendment