Saeedi v Patterson[1998] QCA 181

PINCUS JA:  This is an application for leave to appeal against an order of the District Court made on 13 March 1998. The primary judge dismissed an application for leave to withdraw admissions made by the first defendant's entry of appearance and defence. His Honour also struck out an amended entry of appearance and defence insofar as it did not admit or deny any part of paragraphs 4 and 5 of the plaint and made an order for costs. The action relates to what is alleged to be faulty design and construction of a house built by the first defendant for the plaintiffs. In addition to the first defendant, a number of other parties are joined, including engineers and a local authority. It does not appear to be necessary to deal with the pleadings in detail to determine the question, which is whether leave to appeal should be granted. The dispute concerns the admissions (by the defence) of paragraphs 4 and 5 of the plaint.

It was alleged in paragraph 4 that there were implied terms of the contract to the effect that the design and construction of the dwelling would comply with the relevant laws of Queensland, that the first defendant would exercise due care, skill and diligence in constructing the dwelling and other terms of that sort. Paragraph 5 which, as Mr Dunning, who appeared for the appellant first defendant, says, really followed on from paragraph 4, said that on certain dates in purported compliance with the terms, including the implied terms of the contract, "the first defendant and/or his servants or agents designed and constructed the dwelling on the site and for the benefit of the plaintiffs."  The application to withdraw these admissions was based on an affidavit by the first defendant, Mr Saeedi, which disclosed that he was sent the plaint, and later the defence, and he suggested some alterations in the latter document; he also said that he was not asked to check the defence against the plaint and therefore did not understand, so the affidavit said, that the defence made admissions or the consequences of those admissions. On the face of it, this is a little difficult to follow. It is clear that he read the defence and so he must have seen that it made admissions; it appears that his then solicitors or counsel thought the admissions accorded with his instructions. As for the consequences of the admissions, it must surely have been evident to the first defendant that the matters admitted would be no longer in issue. Mr Dunning pointed out that it appeared that the first defendant had not again obtained the plaint to enable him to check the admissions against the plaint, but it does not appear to me that this is the fault of the plaintiffs.

The affidavit also asserted that the contract, which is not before us, required the first defendant to "engage an engineer to design the foundations, slab and footings to construct the house in accordance with that design in the approved plans".  It appears to me that if the first defendant's real point is that he was not responsible to the plaintiffs for the design of those elements, that is the foundations, slab and footings, a rather more limited withdrawal of admissions than what was asked for was all that was necessary. It is not clear that all the allegations in paragraph 4 had to do with the question of engagement to design the foundations, slab and footings.

The primary judge pointed out that there was no evidence before him as to what instructions were given to the solicitors who were responsible for the preparation of the defence. For all one knows the admissions made were justified on the basis of the instructions given.

The primary judge said in his reasons that he did not think that either party would suffer much, if any, prejudice if the application were granted or refused. His Honour went on to say that there was "a lack of cogency and detail in the first defendant's material" as to why it was that the admissions were made and as to exactly what it is that would prejudice him if the admissions were allowed to stand. His Honour added there was not enough explanation for the making of the admissions in the first place. After further discussion of the submissions made to him, his Honour mentioned in his reasons that he  was concerned that the "contrary instructions", by which was apparently meant the first defendant's current instructions, "might not mean to take every possible point".

The principal ground, as it seems to me, for the order below was that the judge was not satisfied that the making of the admissions in the first place was due to any misunderstanding of instructions or otherwise erroneous; and another ground was that his Honour was not convinced that the withdrawal of the admissions was necessary in order to enable the first defendant to litigate matters genuinely in issue.

It appears to be correct that the only specific allegation in the affidavit relied on which might have justified an amendment was the statement that the first defendant was engaged to build in accordance with a design prepared by an engineer. It seems to be common ground that it was the first defendant who engaged the engineer and one might think he would ordinarily be responsible for the consequences of the engineer's work. If there were any additional factors making him not so responsible then they do not appear in the affidavit. Apart from that, there is nothing in the material to suggest that justice requires withdrawal of admissions as sweeping as those proposed.

If it appeared to me that the judge's order would lead to manifest injustice, I would be inclined to grant leave to appeal, even if there were no point of principle or special importance involved. Mr Dunning's argument, in essence, was that the judge did not appreciate that the failure to allow withdrawal of the admissions would cause prejudice in that it would enable the plaintiff to proceed unimpeded by those issues; that is, Mr Dunning argued that the judge, in saying that there was no prejudice to the first defendant, failed to take account of or overlooked the fact that permission to withdraw the admissions would or could advantage the first defendant. It seems to me unlikely that his Honour did not appreciate these matters and it is unlikely that in referring to lack of prejudice his Honour intended to imply that the admissions could be of no consequence. The essence of his Honour's view, as I read the reasons, is that, the first defendant's affidavit not condescending to very much detail, it seemed to him more than possible that the new instructions were simply to take every point and to withdraw all admissions. It seems to me that that view was open to his Honour and it is not necessary for us to determine on this application whether it was correct or not.

I am far from satisfied, however, on the material we have, that there was any error in the judge's order, let alone an error causing manifest injustice. I would therefore dismiss the application with costs.

McPHERSON JA:  I agree.

AMBROSE J:  I agree.

McPHERSON JA:  The order is that the application is dismissed with costs.