Nalos Pty Ltd & Anor v Robert Bird Group Pty Ltd & Ors  QSC 174
This case considers whether it is appropriate to give leave to amend to agitate new causes of action against a builder and engineer arising out of substantially the same facts as those already pleaded (which arose 10 years ago).
In 2004, Robert Bird Group Pty Ltd (first defendant) was engaged by Woolworths Limited (second plaintiff) to provide structural engineering consulting services for the construction of a regional distribution centre (RDC). On 20 March 2006, the second plaintiff, through its wholly owned subsidiary Nalos Pty Ltd (first plaintiff), entered into a contract with Watpac Construction Pty Ltd (second defendant) for the construction of the RDC. The first defendant was engaged on 19 May 2006 to supervise structural engineering aspects of the RDC.
Defects in the design and construction of the flooring became patent to the plaintiffs in March 2007. Proceedings were commenced by the plaintiffs on 5 October 2012 for breach of contract and negligence in respect of these flooring defects.
On 5 February 2015, the solicitors for the plaintiffs informed the defendants' solicitors of proposed amendments to the further amended claim and statement of claim. On 30 March 2015 a draft of the second amended claim and statement of claim was provided to the defendants' solicitors, wherein breaches of sections 51A and 52 of the formerTrade Practices Act 1974 (Cth) (TPA) were alleged.
Burns J refused leave to amend.
His Honour adopted the principles governing the exercise of the discretion laid out by Applegarth J in Hartnett v Hynes  QSC 225, noting that courts 'should not be seen to accede to applications made without adequate explanation for the delay'. Where there was unexplained delay in commencing the proceedings after the problem was evident, it was particularly incumbent on a plaintiff to proceed expeditiously. To this end, His Honour considered:
- the approximate two month delay from when the solicitors for the plaintiffs informed the defendants' solicitors of proposed amendments to the further amended claim and statement of claim and the actual provision of the second amended claim and statement of claim. The reason for delay; the handing down of a judgment of the High Court, was not accepted by His Honour as an explanation for why 'entirely separate causes of action under the TPA were not pleaded'; and
- the deeming effect of section 51A of the TPA, which would effectively reverse the evidentiary onus, and the significant length of time that had passed since the defendants were engaged to construct the RDC, in deciding that a fair trial could not be secured.
His Honour further held that acceding to the application 'would carry with it an expectation bordering on fiction' that witnesses would be able to properly recall what was considered and acted on 10 years ago.