1.5: Rule contravention, non-compliance and irregularities
3.74: Adding, removing or substituting parties after close of pleadings

Case Summary

The Plaintiff applied to add four architectural and building specialist Defendants to the Action, and sought to add particulars to the Claim in relation to the added Defendants. Three of the four proposed additional Defendants opposed the Application. The underlying dispute related to construction of a 49 unit condominium building, and subsequent issues with water ingress that resulted in having to replace a wall system at a cost of $1.7 million.

Strekaf J. noted that, pursuant to Rule 3.74, parties may be added after the close of Pleadings, and the “classic rule” is that this amendment may be done at any time, no matter how careless or late, subject to four exceptions: (i) the amendment would cause serious prejudice not compensable in costs; (ii) the amendment is hopeless; (iii) unless permitted by statute, the amendment seeks to add a new party or new cause of action after the expiry of a limitation period; and (iv) there is an element of bad faith associated with the failure to plead the amendment originally. If no exception applies, the amendment may be made.

Justice Strekaf permitted the addition of the first Defendant who did not oppose the Application because, even though the limitation period had expired, it had sufficient knowledge of the Claim such that it would not be prejudiced. Strekaf J. did not permit the addition of the remaining three proposed Defendants due to the expiry of the limitations deadline, or because the proposed Defendant did not exist at the relevant time. Her Ladyship noted that, with respect to the fourth proposed Defendant, the name plead was a misnomer, so an amendment to the Application was allowed pursuant to Rule 1.5. Nonetheless, Justice Strekaf held that the Plaintiff could have identified this Defendant’s involvement in the matters at issue had it exercised reasonable diligence. Consequently, the claims against this Defendant were hopeless and defending the Claim would cause serious prejudice.

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