Hi-Tec Windows Pty Ltd v Capital Territory Fixing Pty Ltd

In these proceedings the plaintiff seeks to have an adjudication determination made under the Building and Construction Industry Security of Payment Act 1999 (NSW) set aside.

The matter is listed for hearing on 3 April 2024.

One basis upon which the plaintiff seeks to have the adjudication determination set aside is that it is alleged that the relevant adjudication application was made without the consent of the first defendant’s administrator.

Thus, in the List Statement, it is alleged at par C10 that:

By its current List Response, the first defendant admits this allegation.

By Notice of Motion filed on 19 March 2024, the first defendant seeks to withdraw that admission on the basis that it was made by mistake and, it is said, is contradicted by an email exchange between the administrator and Mr O’Reilly, who is a director of the first defendant, on 5 November 2023 (the day before the adjudication application was made) as follows:

The first defendant wishes to argue that this email exchange shows that in fact the first defendant did have the administrator’s consent, at least to the filing of an adjudication application if not for “the” adjudication application referred to in the plaintiff’s List Statement.

The Court is usually cautious about allowing a party to withdraw an admission made deliberately and after legal advice has been given, as appears to have been the case here. The explanation given by the solicitor for the first defendant is that the relevant email was overlooked. It is usually appropriate to grant leave to withdraw an admission where the admission is, or at least appears to be, contrary to the facts. [1]

Ms Holland, who appears for the plaintiff, pointed to the imminence of the hearing date, and the need for the plaintiff to deal with the first defendant’s revised position were the admission permitted to be withdrawn.

There is some substance to that submission, but my conclusion is that it can be dealt with by making directions to protect the plaintiff’s position.

I propose to allow the first defendant to withdraw the admission, but on the basis that the defendant in its List Response identifies precisely the passages from the email exchange to which I have referred upon which it relies to show that the relevant consent was given.

I also propose to grant the plaintiff leave to serve on the first defendant a notice to produce directed to the question of what Mr O’Reilly was referring to in his email when he referred to “my adjudication application”.

In the circumstances, I make the following orders: