Concrib Pty Ltd v Cumner Contracting [2022] QSC 50

Sarah Ferrett | Sarah Cahill | Renee Shike

Key takeout

This case is a reminder that defendants must seek the court’s leave to withdraw admissions contained in their defence. In considering whether to grant leave, a court will look at the purpose of the rules, which is to facilitate a just and expeditious resolution of the real issues, and take into account whether:

• there is prejudice to the other party; and
• the party seeking leave can demonstrate why an admission was made and why it needs to be withdrawn.

Facts

This case concerns an application for leave to withdraw four admissions pleaded by Cumner Contracting Pty Ltd (Cumner) in a dispute with Concrib Pty Ltd (Concrib).  The dispute arose from a contract for Cumner to supply rocks to Concrib for use in a gabion wall structure, which is a cage filled with rocks. Concrib sought damages in the order of $752k for replacement of the structure as the rocks allegedly started to weather and disintegrate.

Following close of pleadings, the parties failed to resolve the dispute through mediation.  Cumner sent an amended defence to Concrib seeking notice of any objections to filing that document.  The amendments resulted in a complete repleading of the defence, which was inconsistent with four admissions previously made.  Concrib responded by asking when Cumner intended to file the amended defence. Cumner confirmed it had been filed on the assumption that there was no objection and three months later, Concrib objected to the filing of the amended defence. 

The court confirmed that:

• the filing of the amended defence after close of pleading, which had the effect of withdrawing admissions, could only be done by leave irrespective of Concrib’s objection because the relief is discretionary; and
• the court must assess whether there is prejudice, and consider any explanation as to why an admission was made and needs to be withdrawn.  

Cumner sought amendment as a result of matters which came to light at mediation, specifically, whether Concrib had knowledge that Cumner only supplied one type of rock through the parties’ 10 years of previous dealings. 

Cumner sought to withdraw the following four admissions:

1. There was an express term that the rock would be gabion rock.
2. There was an implied term that Cumner, its servants and agents would exercise reasonable care and skill in supplying the rocks.
3. Cumner, its servants and agents owed a duty of care to exercise reasonable care and skill in supplying the rocks.
4. Cumner was and is vicariously liable for the conduct of its employees and servants.

As to the first admission, Cumner alleged ‘gabion rock’ is a misnomer as gabion refers to the process of putting rocks in a cage, rather than a rock type itself.  

Further, Cumner alleged that it could not be expected to provide a specific rock, or owe any obligations or duties outlined in the second and third admissions, as Concrib knew it only supplied one type of rock.

The withdrawal of the fourth admission regarding vicarious liability was not impacted by new issues. Cumner simply alleged vicarious liability is a matter of law and no evidentiary explanation was given.

Decision

The court granted the application, allowing Cumner to withdraw all four admissions, on the basis that the amended defence more correctly identified the issues to be ventilated at trial.

Although Cumner did not provide an explanation for the withdrawal of its admission on vicarious liability, the court found that the reasons for the admission and subsequent withdrawal could be inferred from versions of pleadings. The conduct referred to in the defence was effectively corporate conduct, a standalone pleading of vicarious liability was ‘contextually valueless’ without details of the conduct by particular employees, for which the defendant was vicariously liable. No material facts had been pleaded on vicarious liability by either party to give the admission any relevant meaning.

Not allowing the withdrawal of this admission would only jeopardise the expeditious resolution of the real issues in dispute, contrary to the overarching purpose of the rules of the court.