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

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 417
Court:	THE FULL COURT (WA)
Case No:	FUL:51/2001	Heard:	28 NOVEMBER 2001
Coram:	WHEELER J McLURE J	Delivered:	20/12/01
No of pages:	12	Judgment Part:	1 of 1
Result:	Application successful
Category:	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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] WASCA 417
Decision Date: 20 DECEMBER 2001

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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