Sludgy Pleadings: The Test For Withdrawing Admissions

To withdraw admissions, the applicant must demonstrate: (1) that the proposed amendment raises a triable issue, (2) there is a reasonable explanation for the withdrawal, and (3) that the withdrawal will not result in prejudice to the respondent that cannot be compensated for in costs. In this case, the plaintiff applied to withdraw several admissions which were contrary to the remainder of its pleadings. Given this, along with the fact that both parties had prepared for trial in accordance with the bulk of the pleadings and not the admissions, the Court allowed the application and withdrew the admissions.

Durham issued a tender to clean an exfiltration lagoon. Wessuc, as subcontractor, provided Todd Brothers Contracting, as contractor, a written estimate for a portion of the tendered work. The estimate was dependent on the volume of sludge removed and disposed from the lagoon, with no agreed upon fixed or capped price. Wessuc relied on Todd Brothers' representation