All Fasteners(WA) v Grant Caple Pty Ltd - [2003] FMCA 430

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALL FASTENERS(WA) v GRANT CAPLE PTY LTD & ORS

[2003] FMCA 430

Trade Practices – Practice & Procedure – joinder of Respondent – amendment of Statement of Claim.

Trade Practices Act 1974, ss.52, 75B(1)(a), 82, 87(2)(a),

Real Estate and Business Agents Act 1978
Corporations Act 2001, s.436A
Federal Magistrates Court Rules 2001 r 18.01

Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Sali v SPC Ltd (1993) 67 ALJR 841
Smith and Anor v Gannawarra Shire Council (2002) 4 VR 344

Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd (2003) WASC 53(24 March 2003)
Compaq Computer Australia Pty Ltd v Merry (1998) FCA 968; 157 ALR 1 Pereira v Director of Public Prosecutions (1989) 82 ALR 217
ACCC v Michigan Group Pty Ltd (2002) FCA 1439
Amon v Raphael Tuck and Sons (1956) 1 QB 357 at 380
Rogala v Caris Corp. Ltd (1983) (Unreported Burt CJ 27 September 1983
Lib no. 5089)
Vandevell Trustees Ltd v Wright (1931) AC 912
Briggs v Curtis Quick and Associates (1999) WASCA 139

Applicant:

ALL FASTENERS (WA) (A FIRM)

Respondents:

GRANT CAPLE PTY LTD
(ACN 058 483 686),
GRANT CAPLE (DISMISSED),
PERFORMANCE BUSINESS SALES
(A FIRM) & KEN HALL

File No:

WZ 263 of 2002

Delivered on:

30 September 2003

Delivered at:

Melbourne

Hearing date:

5 June 2003

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr A Rumsley

Solicitors for the Applicant:

McKie & Associates

Counsel for the Proposed Fifth Respondent:

Mr T Darbyshire

Solicitors for the Proposed Fifth Respondent:

Kott Gunning

ORDERS

The Applicant be granted leave to join as a Fifth Respondent to the Application Ms Michelle Caple.
The Application be otherwise adjourned for further directions on
28 October 2003 at 9.30 a.m.
The costs related to the decision delivered on 30 September 2003 are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 263 of 2002

ALL FASTENERS (WA) (A FIRM)

Applicant

And

GRANT CAPLE PTY LTD,
GRANT CAPLE (DISMISSED),
PERFORMANCE BUSINESS SALES (A FIRM) AND
KEN HALL

Respondents

REASONS FOR JUDGMENT

In this matter by way of notice of motion filed 11 April 2003 the applicant seeks leave to amend its application.
The application had originally been filed on 20 December 2002 and had claimed damages against four named respondents pursuant to s.82 of the Trade Practices Act 1974 (the Trade Practices Act) in respect of conduct alleged against the respondents to be in breach of s.52 of that Act. In the alternative a declaration was sought that an agreement to purchase a business as a going concern between the applicant and Grant Caple Pty Ltd (the first respondent) dated 16 May 2002 (“the agreement") is void pursuant to s.87(2)(a) of the Trade Practices Act. Further relief was sought by way of a direction that the first respondent authorise the release to the applicant of $40,000 held on trust by a company known as "All Property Settlements Pty Ltd".
A statement of claim filed 20 December 2002 provides the background in relation to the parties and the claimed misrepresentations. The first respondent was claimed to be a company which was engaged as a stockist and seller of a range of nailing and stapling hardware to the building, cabinet making and furniture making business. The second respondent Grant Caple at all material times was a director of the first respondent. The third respondent Performance Business Sales (the firm) is claimed to be a partnership constituted by a number of companies carrying on business as a business agent for the purpose of the Real Estate and Business Agent's Act 1978. It is further claimed against the third respondent that it acted as agent of the first respondent in relation to the sale of the first respondent's business.
The fourth respondent Mr Ken Hall is claimed to be a business agent also for the purpose of the Real Estate and Business Agent's Act and an employee of the third respondent responsible for the sale of the first respondent's business.
It is not necessary to recite the details of the alleged representations save and except that they were representations concerning the business of the first respondent which included reference to future growth, profit, monthly sales, and that a sales representative of the business was leaving the business to retire and not continue in an active sales position in the industry or otherwise. Of the remaining representations there is significantly a suggestion that nails imported from Thailand were of no lesser quality than those of other suppliers and would provide substantially better profit margins. In general it is said that in reliance on the representations the applicant entered into the agreement to purchase the business as a going concern. The pleadings are then set out as to the representations being proved to be allegedly incorrect. Loss and damage is claimed amounting to $183,805.
Orders had been made by the Court on 4 February 2003 which included an order that the application be stayed against the first respondent and/or the administrator of the first respondent until further order. It should be noted that a voluntary administrator of the first respondent was appointed on 20 January 2003 pursuant to s.436A of the Corporations Act 2001.
Application was made for default judgment against the second respondent on the basis of the failure of the second respondent to comply with orders to file and serve a defence. In an outline of submissions relating to that application for default judgment, reference was made to an allegation that in addition to entering into the agreement to purchase the business of the first respondent, the applicant had entered into a lease for the premises at which the business was carried out. Reference was made in those submissions to the respondent allegedly representing that the premises to be leased were "owned" by the first respondent. It was suggested that the premises were leased however from the directors of the first respondent, the second respondent and a person not then a party, namely Michelle Caple (Ms Caple).
The current application seeks to join Ms Caple as a fifth respondent and leave to amend the statement of claim to raise the issue of the lease and other issues against Ms Caple.
On 19 March 2003 orders were made by Raphael FM that judgment be entered for the applicant against the second respondent in default of filing a response and that damages be assessed by the District Registrar of Western Australia pursuant to r 18.01 of the Federal Magistrates Court Rules 2001.
On 17 April 2003 orders were made by consent that the claim against the first respondent be dismissed.
In support of the notice of motion filed 11 April 2003 seeking to join Ms Caple as a fifth respondent and to make consequential amendments to the statement of claim, the applicant has relied upon an affidavit sworn by Glen McKenzie on 23 April 2003, an affidavit of Ronald John McCaughan sworn 20 February 2003, an affidavit of Ken Hall sworn 2 May 2003 and an affidavit of Robert John Pascoe sworn

12 May 2003.
Ms Caple relied upon an affidavit sworn by her on 19 May 2003.
The applicant provided an outline of submissions dated 4 June 2003 and made further oral submissions during the course of the audio link hearing. Likewise the proposed fifth respondent provided an outline of submissions also dated 4 June 2003 and made oral submissions.
It is common ground that the Court has power to make an amendment of the kind sought in this application. It is further noted that both parties relied upon the High Court decision of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. In that case Dawson, Gaudron and McHugh JJ considered the principles set out in a joint judgment of Toohey and Gaudron JJ in Sali v SPC Ltd (1993) 67 ALJR 841 at 849 where that Court had dealt with the issue of the exercise of discretion and the issue of Court administration. Having referred to that passage the High Court in JL Holdings stated at page 154 the following:
“It may be said at once that in the passage which we have cited from Sali v SPC Ltd Toohey and Goudron JJ are not to be taken as sanctioning any departure from the principles established in Cropper v Smith and accepted in Clough and Rogers v Frog. Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”
The decision of the High Court in Queensland v JL Holdings was followed recently by the Court of Appeal to the Supreme Court of Victoria in the matter of Smith and Anor v Gannawarra Shire Council (2002) 4 VR 344. Although dealing with an application for adjournment and principles of a similar kind dealt with in the Sali decision it is useful to set out a passage from Winneke P at page 352 of that case as follows:
“In this day and age when the courts are under pressure to deal with cases before them in an expeditious fashion and where, accordingly, case management has become a significant aspect of the curial processes, the administration of justice still requires that the courts ensure, so far as practicable, that justice be administered evenhandedly so that each party to a dispute is in a position, within the bounds of reason, to present his or her case to the court in its best light and in an orderly fashion.”
In the present case the applicant has submitted that the application does not constitute extreme circumstances where it should be shut out from litigating an issue which is fairly arguable namely a claim against the proposed fifth respondent.
It is submitted that the arguable claim against the proposed fifth respondent is that she has aided and abetted the contraventions within the meaning of s.75B(1)(a) of the Trade Practices Act. The applicant concedes that it must prove that the proposed fifth respondent was aware, or should have been aware of the essential facts which gave rise to the contravention (see Yorke v Ross Lucas Pty Ltd (1983) 68 FLR 268 at 272 affirmed on appeal by the High Court in Yorke v Lucas (1985) 158 CLR 661 at 666-669). It is not necessary according to the applicant's submissions that it should prove that the directors had actual or constructive knowledge of the essential facts that give rise to the contraventions.
It was submitted that Ms Caple had full access to information in relation to the sale of the business and had initiated the process for sale of the business including the supply of information to be used in the sales report and had been involved in the production of the sales report. The sales report, it was submitted, is included as part of the representations which are said to have constituted the alleged breach of s.52 of the Trade Practices Act. It was submitted that Ms Caple took no steps to inform the applicant, Mr Hall or the third respondent of problems of which she had knowledge, namely problems with stock from Thailand and the position in relation to the sales representatives. It was submitted that there is sufficient to support a finding that Ms Caple aided and abetted in a contravention of s.52 of the Trade Practices Act under s.75B(1)(a) of the Trade Practice Act (Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd (2003) WASC 53 (24 March 2003) at paragraphs 262-264.
It was submitted by the applicant that to have been directly or indirectly knowingly concerned in or a party to the contraventions under s.75B(1)(c) the proposed fifth respondent must have had actual knowledge of the essential facts that give rise to those contraventions. That actual knowledge may be inferred from the circumstances (see Compaq Computer Australia Pty Ltd v Merry (1998) FCA 968; 157 ALR 1). Reliance was placed upon the High Court decision of Pereira v Director of Public Prosecutions (1989) 82 ALR 217 where the High Court states at 220:
“ ... a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer’s shorthand, be referred to as wilful blindness.”
It was submitted by the applicant that in order to attract accessorial liability, persons need to appreciate in law the legal consequence of their actions. It is enough, according to the applicant's submissions, that they knew of the primary liability for the contraventions in which they participate with knowledge in that conduct (see Yorke v Lucas (1985) 158 CLR 661).
It was submitted therefore by the applicant that the circumstances support an inference that Ms Caple knew the essential facts going to determine the representations were misleading or deceptive or likely to mislead or be deceptive or had sufficient knowledge of the first respondent's conduct that she should have been suspicious and made enquiries. The failure to make any or any proper inquiry in the circumstances is sufficient, it was submitted, to support an inference of knowledge by her as to the existence of the representations and their falsity.
During the course of submissions I referred the parties to a passage in the judgment of Dowsett J in ACCC v Michigan Group Pty Ltd (2002) FCA 1439. In considering circumstances where a corporation may be found responsible as a result of the actions of one of its employees does not necessarily mean that the employee would be knowingly concerned in the breach. At paragraph 303 Dowsett J states:
“It is quite possible that the act of a natural person respondent on behalf of a corporation will constitute a contravention of the Act by that corporation, and yet the natural person respondent will be found not to have been knowingly concerned in that contravention. In the case of representations as to existing facts, this is because it is not necessary to show that the respondent corporation knew of the misleading nature of the statement in question, but knowing involvement predicates such knowledge on the part of the relevant natural person. The matter is even more complex in the case of representations as to future matters. A representation on behalf of a corporation will constitute a contravention if the corporation fails to show reasonable grounds for it. However a natural person respondent bears no onus of proof ..... It will be necessary for ACCC to demonstrate that such a person knew that the representation was made; and either knew that it was misleading; or knew that the corporation had no reasonable grounds for it.”
It was submitted on behalf of counsel for Ms Caple that the Court should consider the principles in relation to joinder. It was submitted that the applicant must show that "participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding”. The question to be settled must be one which cannot be effectively and completely settled unless he or she is a party. (see Amon v Raphael Tuck and Sons (1956) 1 QB 357 at 380.) It was further submitted that there was no power to add a respondent because of the resolution of the litigation between the existing parties will operate upon him or her in a commercial sense (Rogala v Caris Corp. Ltd (1983) (Unreported Burt CJ 27 September 1983 Lib no. 5089).
It was submitted that the rule of joinders does not give the power to join a party whenever it is just and convenient to do so, but only when he or she ought to have been joined or his or her presence is necessary to ensure that all the questions between the original parties are effectually and completely disposed of (see Vandevell Trustees Ltd v Wright (1931) AC 912 at 936).
In applying the authority of Queensland v JL Holdings it was submitted that in the present case an amendment should be allowed provided that any prejudice to other parties could be compensated by costs, that a Judge is entitled to weigh in the balance the strain which litigation imposes on litigants particularly if they are personal litigants. Considerations which tend to argue against the grant of indulgence include the failure of a party to offer anything by way of explanation for a late explanation and the blamelessness of the resisting party (per Kirby J at page 170). It was further submitted that it is not appropriate to grant leave to amend a pleading in a form which is inconsistent with the existing particulars (see Briggs v Curtis Quick and Associates (1999) WASCA 139).
In the present case it was submitted that the representations which the applicant allegedly relied upon in entering into the agreement to purchase the business as a going concern have not been subject to any application to amend. Likewise the undisclosed material claimed by the applicant which would have caused it not to enter into the agreement, if known, has likewise not been altered. Reference was made to the affidavit of Mr McKenzie sworn 4 March 2003 and it was submitted that there is no relevant mention of Ms Caple. The only evidence advanced to support the joinder of Ms Caple appears in the affidavits of Mr Ronald McCaughan and Ken Hall. Mr McCaughan mentions Ms Caple only once in paragraph 10 of his affidavit where he states as follows:
“In either late 2001 to early 2002, product from Thailand arrived at All Fasteners’ Midvale factory. When I saw the product it appeared some of the nails were ok, but the other product was rubbish. I told Michelle Caple she should call Grant in Thailand to get a credit note for it.”
It was submitted that in his affidavit, Mr Ken Hall mentions Ms Caple in passages from paragraphs 4 to 15. By way of summary it was submitted that that evidence simply demonstrates that Ms Caple engaged Mr Hall to sell the business, that he explained the process of selling the business to her and she participated in discussions about the business. It was submitted that there was no evidence by Mr Hall of any specific representations made by Ms Caple.
It is noted that in paragraph 11 of Mr Hall's affidavit sworn 2 May 2003, he refers to meetings with Ms Caple. In relation to his first contact with Ms Caple he deposes that this occurred on 12 February 2002 when Ms Caple told him she was a director of ‘All Fasteners (WA) Pty Ltd’ and that the other director was Grant Caple who was then in Thailand and that they wanted to appoint Mr Hall to sell the business. Mr Hall deposes that at a first meeting with Ms Caple on an undisclosed date discussions occurred in relation to the nature of the business, the profit generated, equipment leased and amount of stock held. He deposes that he explained to Ms Caple the approach his organisation took in marketing a business which included producing a report of a business. He states that the report was crucial in the sale of a business and would be based on information provided by the company and its accountant. Once prepared the directors would need to agree to the contents before the business was ready to be marketed. In his affidavit he refers then to steps necessary for the preparation of the report including an up to date set of company financials and for the review of those financials to provide the preliminary valuation/ appraisal of a business. He states that he was to provide a pro forma to be completed to provide the necessary information in addition to the company's finances to prepare a report.

The initial information alleged to have been provided by Ms Caple is said to have been supplied at a meeting on 12 February 2002 where Ms Caple gave Mr Hall a copy of a stock sheet printed off the company's computer and allegedly told him that she would arrange for the company's accountant to forward the relevant financials. Mr Hall deposes that on 21 February 2002 the company's accountant faxed copies of the company's financial reports for the 1999-2000 financial years.
Mr Hall deposes to a second meeting with Ms Caple on 14 March 2003. At that meeting he deposes that again he discussed the process of preparing a report on the business and made a request for financials for the 2000/2001 financial year, details of wages, payments, expenses to be included in the profit calculations for sale of the business with figures and confirmation of the expenses to be included and to be provided by the company's accountants. He further deposes that during his meetings with Ms Caple she had told him that she wanted the business sold as soon as possible as her relationship with Grant Caple was at an end.
On 4 April 2002 Mr Hall deposes that he met with Ms Caple and Mr Grant Caple at the company's premises at Midvale and they discussed the financials. He was told by Grant Caple that he and Ms Caple wanted $170,000 plus selling fees making a total of $180,000. Again they discussed the contents of the report on the business and Mr Hall states he provided Grant Caple with a copy of the pro forma to be filled out for the report of the business. Discussions occurred relating to the history of the business and client base and Mr Hall claims that:
"I was told that the company's current sales representative was in his 60s and retiring on 30 June 2002.”
In his affidavit he does not depose as to who told him about the current sales representative and it can only be inferred that this was in the presence of Ms Caple.
In considering those details in the affidavit of Mr Hall it is submitted on behalf of Ms Caple that there is no evidence by Mr Hall of any specific representations made by Ms Caple.
In considering the principles applicable to liability of the proposed fifth respondent reference was made by counsel to s.75B(1)(a) of the Trade Practices Act and reliance was placed upon Yorke v Lucas to which

I have already referred. In this case it was submitted the liability to attach to Ms Caple is not sufficient to show that she had knowledge of representations made but must have known that the representations constituted misleading and deceptive conduct.
It was submitted by counsel for Ms Caple that the application to join her and to amend the proceedings should be dismissed as the applications occurred after conclusion of proceedings against all other original parties. Further it was submitted no adequate explanation has been given for the delay in applying. It was noted that the proposed fifth respondent would suffer significant prejudice which could not be adequately compensated by way of costs. The person said to be primarily involved in the alleged misleading and deceptive conduct namely Mr Grant Caple has left the jurisdiction without filing any substantive defence and is now said to be resident outside the jurisdiction. His testimony would be necessary for the proposed fifth respondent to defend the action against her and this evidence would now be difficult or impossible to obtain. It was further submitted that there is no evidence to support the proposed cause of action against Ms Caple and in particular no evidence to support the proposition that she had any actual or constructive knowledge of the contravention of s.52 of the Trade Practices Act as alleged. It was submitted that in the present case there is simply no evidence to establish that Ms Caple is liable.
Reliance was placed upon the affidavit sworn by Ms Caple on 19 May 2003. In that affidavit Ms Caple states the following:
“3.My only regular involvement in the Business would be to reconcile the accounts at the end of each month and to pay end of month creditors. For this purpose I had authority to sign business cheques.
4.I would usually attend the Business premises to collect back up data, but I did not spend a lot of time at the Business premises. I usually prepared the accounts and did the other work at home.”
Further in the affidavit Ms Caple states that she did not have "the knowledge or expertise to run the Business myself while the Second Respondent was away." Her marriage to the second respondent, Mr Caple, broke down on 4 April 2002 when the second respondent advised her he was moving to Thailand to live. The decision was then made to sell the business. Ms Caple admits to meeting with Mr Hall on 12 February 2002 where a general description was given by Mr Hall as to how ‘business broking’ worked. Ms Caple states she did not “give him stock figures at that meeting and did not recall him saying anything about his report”. She admits to a second meeting with Mr Hall some weeks after the first meeting. At that meeting she states “we talked about more specific issues”. She concedes that at that meeting she provided “stock figures off the computer”. At a further meeting where Mr Grant Caple was present, Ms Caple admits to being present though states, “I said very little at the meeting”. She recalled saying to Mr Grant Caple, “I do not understand this” referring to the entire selling process. She admits the discussion occurred about setting an initial selling price of $180,000, discussion about the financials, but does not recall whether a pro forma document was supplied to Mr Grant Caple. There was a discussion about the history of the business and client base. Ms Caple denies saying that the current sales representative was “in his 60s” as “he was at the time still in his 50s”. She states:
"I have no recollection of Mr Hall being told that Mr McCaughan was retiring and this was not said to Mr Hall in my presence”.
In her affidavit Ms Caple refers to the affidavit of Mr McCaughan. She notes that Mr McCaughan on at least one occasion did tell her that he thought some of the product from Thailand “was rubbish” She notes that she only had limited contact with Mr McCaughan. She further notes that in March 2002 Mr McCaughan had told Mr Grant Caple that he was going to work at a competitor of the business and had agreed to stay on however until the end of June. In early June Mr Grant Caple discovered that Mr McCaughan was “going to our resellers and, instead of selling them further stocks of our product, was attempting to induce them to purchase them from his prospective employer .......”. Ms Caple notes that those customers had spoken to Mr Grant Caple in the presence of Mr McKenzie. She states that during June Mr McKenzie worked with Mr Grant Caple to familiarise himself with the business prior to settlement. Ms Caple states that when Mr Grant Caple discovered what Mr McCaughan was doing he was asked by Mr Grant Caple to leave the business immediately and was paid entitlements to the end of June 2002.
Significantly Ms Caple refers to a financial agreement between her and Mr Caple purportedly settling property issues arising from the breakdown of their marriage. The document was forwarded to the applicant's solicitors on or about 26 March 2003. Under the financial agreement Ms Caple deposes that she was to receive the business premises and the matrimonial home. She states that she is not aware of any property now owned in Australia by Mr Caple.

Reasoning

In this application although the proposed Statement of Claim may be regarded as less than adequate there is in my view sufficient in the material to at least establish an arguable claim by the Applicant against Ms Caple. Ms Caple remains the owner of the business premises and at all material times was a director of the company All Fasteners (WA) Pty Ltd. I accept that on the evidence produced to the Court at this time that Ms Caple’s involvement in the preparation of material, instructions to agents and negotiations for the sale of the business was extremely limited. However she was able to attend meetings and cannot simply avoid involvement in the matter on the basis that as a director she did not play an active role in the affairs of the company.
Amendments of this kind are difficult in the sense that allegations now sought to be raised in relation to the lease and otherwise, although not as clearly drafted as may be possible, now seek to raise issues which Ms Caple will need to answer. Nevertheless, I am satisfied that the allegations now sought to be relied upon by the Applicant are allegations of a kind which should be permitted in circumstances where at least Ms Caple might arguably be said to be a person who, it would be inferred, knew the essential facts which formed the basis of the representations were misleading or deceptive or likely to mislead or be deceptive. In the alternative I am satisfied that through her meetings and general knowledge of the business she had sufficient knowledge of the First Respondent’s conduct to have made her suspicious and require her to make enquiries. It is not necessary for me to conclude that this is anything other than an arguable allegation at this stage or to further conclude that it is at least arguable that her failure to make any or any proper enquiries is sufficient to support the inference of knowledge by her as to the existence of the representations and their falsity. At the very least she had knowledge of the claimed substandard quality of the product supplied from Thailand.
Ultimately the issue will be the subject of evidence. Having regard to the passage from the judgment of Dowsett J in the case of ACCC v Michigan Group Pty Ltd, it is my view that the principles set out in that passage to which reference has been made will no doubt be agitated at the trial of the action. It is not appropriate to apply those principles in order to preclude the Applicant from being permitted to amend the application to now add as a Fifth Respondent Ms Caple.
At this stage it is my view that there is sufficient in the surrounding circumstances namely Ms Caple being a co-director and ultimately receiving in fact the business premises as part of a family law settlement together with her attendance at various meetings and at least being present when discussions occurred of some of the relevant matters including the financial circumstances of the business that it is appropriate that I permit the Applicant to join her as a Fifth Respondent. I otherwise grant leave to the Applicant to file and serve within fourteens days of the date of this judgment an amended Statement of Claim.
In making the decision to permit the joinder of the Fifth Respondent and amend the Statement of Claim I am mindful of the requirements of the Court in considering whether there is an arguable claim and that it is not necessary for the Applicant to prove actual or constructive knowledge on the part of Ms Caple. I am further mindful that in exercising its discretion to permit an amendment the Court should have regard to potential prejudice to Ms Caple in preparing her Defence. The Court is concerned about the inability of Ms Caple to perhaps rely upon and call to give evidence Mr Grant Caple who is out of the jurisdiction. Nevertheless in the circumstances that absence should not prove fatal to Ms Caple’s ability to properly defend this claim. Otherwise in the course of case management it is appropriate that the Court endeavours to ensure that all parties have the ability to present his or her case to the Court in the best light and in an orderly fashion as described by Winneke P in Smith v Gannawarra. I am satisfied that the presence of Ms Caple is necessary to ensure that the questions which were raised between the original parties are effectively and completely disposed of as the process of negotiations leading to representations and appointment of agents and culminating in the sale of the business are inextricably connected with that original claim.
In the event that the Statement of Claim does not sufficiently particularise the allegations against Ms Caple then I shall make further directions that the Fifth Respondent shall upon service of the Amended Statement of Claim be granted leave to file and serve a request if any of further particulars of the Amended Statement of Claim. The particulars if any shall be filed and serve before the Fifth Respondent is required to file her Defence.
Accordingly subject to further submissions from counsel the orders

I propose are as follows:-
(1)The Applicant be granted leave to join as a Fifth Respondent to the Application Ms Michelle Caple.
(2)The Application be otherwise adjourned for further directions on
28 October 2003 at 9.30 am.
(3)The costs related to the decision delivered on 30 September 2003 are reserved.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:
Date: 30 September 2003