Matthew Jones KC (leading J Dudley) appeared for the defendants, instructed by Cowen Schwarz Marschke Lawyers.
The proceedings arose from a dispute over the sale of development land, later developed as a Tesla dealership. The plaintiff alleged that the defendants had agreed to assume liability for significant holding costs and related expenses incurred due to settlement delays and changes to the development works.
The principal issue was the plaintiff’s application for leave to file a further amended claim and statement of claim, and to join the director of the first to fourth defendants as a fifth defendant. The defendants opposed leave and sought to strike out the proposed pleading (with leave to re-plead), on the basis that it lacked sufficient material facts to sustain the plaintiff’s case. Specifically, the defendants argued that the plaintiff’s mistake case and claim for ‘unlimited’ holding costs were inadequately pleaded.
Muir J refused leave to file the proposed amended pleading, finding it unsuitable for filing in its current form. Her Honour accepted the defendants’ submission that the mechanism of the alleged mistake was not adequately pleaded — specifically, the material facts as to how and why the mistake was made. Her Honour further held that the plaintiff’s case for ‘unlimited’ holding costs lacked sufficient clarity, had the tendency to prejudice or delay a fair trial and was liable to be struck out. The plaintiff was, however, granted leave to file a further amended claim and statement of claim, including the joinder of the director as a fifth defendant.
The judgment can be read by clicking here
