The Court refused leave to amend to add a contractual debt claim (for overpayment under a construction contract) to an existing proceeding pleading only misleading or deceptive conduct based on pre-contractual representations, holding that the new cause of action did not arise out of the same or substantially the same facts as required by UCPR r 376(4)(b). The Court held that the mere reference to the contract and the Final Certificate in the existing pleading for the purpose of calculating damages under the misleading or deceptive conduct claim was insufficient to ground a new contractual debt cause of action as arising from substantially the same facts; the two 'stories' were fundamentally different — one concerning a lost alternative opportunity and the other a contractual 'mop up'. Even if r 376(4)(b) had been satisfied, the Court found it would not have been appropriate to grant leave under r 376(4)(a), given the proximity to trial, inadequate explanation for delay, prejudice to the defendants requiring further investigation and pleading, and the inevitable vacation of trial dates.
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