Fresh cause of action or further particulars?

Often during proceedings a party may be granted leave to amend its statement of claim in order to provide further detail (or further particulars). But at what point does the Court deem that a fresh cause of action has arisen? This is particularly relevant if a claimant (for example, a leaky building owner) brings proceedings within the relevant limitation period but tries to introduce further particulars (which the defendant had no knowledge of) outside the relevant limitation period. If that amendment is interpreted by the Courts as a fresh cause of action, the defendant could argue that it is statute barred.

There are a number of New Zealand cases which discuss this issue including Body Corporate 338356 & Ors v Endean & Anor [2014] NZHC 2644 which states that there will be a fresh cause of action where:

  1. there is something essentially different from that which was pleaded earlier;
  2. there is a change relating to a matter of law, of fact or both;
  3. the pleading is varied substantially from what was previously alleged; and
  4. the defendant does not receive fair warning of the alleged defect.

In Carter Holt Harvey Ltd v Genesis Power Ltd (no 8) High Court, Auckland, CIV 2001-404-001974, 29 August 2008, Randerson J exercised his discretion and decided that even though there was no fresh cause of action, it would not be just to grant leave to amend the plaintiff’s pleadings where the defendant did not have the opportunity to seek contribution or indemnity from third parties.

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