Australia, June 3 -- New South Wales Land and Environment Court issued text of the following judgement on May 5:

1. This is an application by the Defendant to file an amended defence to the Plaintiff's claim.

2. Mr Folino Gallo of counsel, who has appeared for the Plaintiff, opposes the amendments on two very narrow grounds.

3. The first is that he submits, as a matter of either law, the Court rules, or proper practice and procedure, those portions of the amended defence which pray in aid various protective provisions found in misleading or deceptive conducts provisions of the Australian Consumer Law ("ACL"), the unconscionable conduct provisions of the ACL and the unfair contract provisions of the Contracts Review Act 1980 (NSW), all require a party seeking such relief in a defensive way to not only plead the matter in a defence (or perhaps to not plead the matters in a defence at all), but rather to plead them in a cross-claim and to claim relief in the cross-claim. The fundamental point being, at least relief must be claimed by way of cross-claim.

4. The second point is a drafting matter which turns on a submission that in various paragraphs following [45] of the proposed defence, there is a reference to paragraph [3] of the amended defence, which paragraph asserts there is no binding contract. If that is correct, it would mean that none of the paragraphs following [45] would have any work to do because each of them proceeds upon the premise that there has been found, contrary to the Defendant's primary position, to be a contract.

5. Dealing with the first point first, I have been taken to two decisions, being Britannia Pty Ltd v Parkline Constructions Ltd (2006) 67 NSWLR 9, and in particular to what Hodgson JA said, at paragraphs [7] to [11], which observations were agreed to by Tobias JA and at least not traversed by Basten JA, together with the decision of Hungerford ADCJ in 2009 of Stallion Civil Group Pty Ltd v Tresedar Pty Ltd [2009] NSWDC 125.

6. Each of those decisions were in the context of the Building and Construction Industry Security of Payment Act 1999 (NSW). That Act, of course, by its terms, expressly prevents a person seeking to challenge an interlocutory adjudication under that Act from filing any cross claim. Nonetheless, the decisions are expressed in terms that a person defending a claim who seeks positive relief on any basis is entitled to do so by way of either defence or "an interlocutory application." It is unclear to me what such an interlocutory application would look like.

7. I have always understood, although based on these authorities it would appear that I might have been wrong, that a party seeking relief of the type sought by the Defendant did need to do so by a cross claim. I have a strong feeling that each of the decisions relied upon by the Defendant were driven by the particular statutory restrictions of the Building and Construction Industry Building and Payment Act and, perhaps, were not intended to have the broader application that as written they seem to have. Certainly, the true ratio of each of those cases is limited to claims concerning that Act. Uninstructed by the authorities, I remain of the view that it is ordinarily necessary to seek relief under remedial legislation by way of cross-claim. I do not think it would be appropriate for me to decide this on a final basis what may be a very important question of law on an interlocutory application such as this. I will simply note that, on the authorities relied on by the Defendant, the matter is arguable. *Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196c2cf58e6d09d10cf6c459)

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