ABB Service Pty Ltd v Hetherington

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ABB SERVICE PTY LTD -v- HETHERINGTON & ANOR [2001] WASCA 417



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2001] WASCA 417
THE FULL COURT (WA)
Case No:FUL:51/200128 NOVEMBER 2001
Coram:WHEELER J
McLURE J
20/12/01
12Judgment Part:1 of 1
Result: Application successful
B
PDF Version
Parties:ABB SERVICE PTY LTD (ACN 000 095 250)
KENNETH SYDNEY HETHERINGTON
JULIE ANN HETHERINGTON

Catchwords:

Indorsement of claim
Defective but not a nullity
Application for leave to amend
Applicability of O 21 r 5(5) of Supreme Court Rules
Turns on own facts

Legislation:

Fair Trading Act 1987 (WA), s 79
Limitation Act 1935
Supreme Court Rules, O 2 r 1(1), O 2 r 1(2), O 6 r 1, O 6 r 1(1), O 20 r 19(1), O 21 r 5, O 21 r 5(2), O 21 r 5(5)
Trade Practices Act, s 52
Trade Practices Amendment Act (No 1) 2001, s 82

Case References:

ABB Service Pty Ltd v Hetherington [2001] WASCA 235
Commonwealth v Verwayen (1990) 170 CLR 394
Maxwell v Murphy (1957) 96 CLR 261
Morgan v Banning (1999) 20 WAR 474
Ronex Properties Ltd v John Laing Constructions Ltd [1983] QB 398
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Weldon v Neal [1887] 19 QBD 394

Bill Discount Services Pty Ltd v Dill-Macky, unreported; FCt SCt of WA; Library No 6700; 7 May 1987
Dye v Griffin Coal Mining Co (1998) 19 WAR 431
Hill v Luton Corporation [1951] 2 KB 387
Pontin v Wood [1962] 1 QB 594

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : ABB SERVICE PTY LTD -v- HETHERINGTON & ANOR [2001] WASCA 417 CORAM : WHEELER J
    McLURE J
HEARD : 28 NOVEMBER 2001 DELIVERED : 20 DECEMBER 2001 FILE NO/S : FUL 51 of 2001 BETWEEN : ABB SERVICE PTY LTD (ACN 000 095 250)
    Applicant

    AND

    KENNETH SYDNEY HETHERINGTON
    JULIE ANN HETHERINGTON
    Respondents



Catchwords:

Indorsement of claim - Defective but not a nullity - Application for leave to amend - Applicability of O 21 r 5(5) of Supreme Court Rules - Turns on own facts




Legislation:

Fair Trading Act 1987 (WA), s 79


Limitation Act 1935
Supreme Court Rules, O 2 r 1(1), O 2 r 1(2), O 6 r 1, O 6 r 1(1), O 20 r 19(1), O 21 r 5, O 21 r 5(2), O 21 r 5(5)
Trade Practices Act, s 52
Trade Practices Amendment Act (No 1) 2001, s 82

(Page 2)

Result:

Application successful




Category: B


Representation:


Counsel:


    Applicant : Mr P B O'Neal
    Respondents : Mr P P McCann


Solicitors:

    Applicant : Minter Ellison
    Respondents : Deacons



Case(s) referred to in judgment(s):

ABB Service Pty Ltd v Hetherington [2001] WASCA 235
Commonwealth v Verwayen (1990) 170 CLR 394
Maxwell v Murphy (1957) 96 CLR 261
Morgan v Banning (1999) 20 WAR 474
Ronex Properties Ltd v John Laing Constructions…
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Details
Case
[2001] WASCA 417
Decision Date

CaseChat Overview and Summary

The case of ABB Service Pty Ltd v Hetherington involved a dispute between a service company and an individual over a defective claim form. The plaintiff, ABB Service Pty Ltd, sought to recover unpaid invoices for services rendered. The defendant, Hetherington, contested the claim, arguing that the claim form was defective and thus invalid. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the defect in the claim form rendered it a nullity or if it could be amended to correct the defect. Specifically, the court had to determine whether the application for leave to amend the claim form was permissible under O 21 r 5(5) of the Supreme Court Rules. This provision allows for amendments to be made if the court considers it just to do so, taking into account all relevant circumstances.

In assessing the application, the court considered the nature and extent of the defect in the claim form. It found that while the defect was significant, it did not render the claim form a nullity. The court further found that justice required the claim form to be amended, and thus, it granted leave for the amendment under O 21 r 5(5) of the Supreme Court Rules. The court concluded that the application was successful, and the order was made in favour of the plaintiff.

Orders

Orders of the court

Application successful

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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