Anagnostis v Davies Bros Ltd

[1987] TASSC 119

Serial No B49/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Anagnostis v Davies Bros Ltd [1987] TASSC 119; B49/1987

PARTIES:  ANAGNOSTIS
  STYL
  v
  DAVIES BROS PTY LTD

FILE NO/S:  1031/1986
DELIVERED ON:  5 November 1987
JUDGMENT OF:  Cox J

Judgment Number:  B49/1987
Number of paragraphs:  7

Serial No B48/1987
List "B"
File No 1031/1986

ANAGNOSTIS AND STYLE v DAVIES BROS LTD

REASONS FOR JUDGMENT  COX J

5 November 1987

1. The plaintiffs commenced action against the defendant on the 6 August 1986 for damages for breach of contract. In substance their claim was that the defendant had in 1971 entered into a written agreement with them granting to them the sole agency to distribute the defendant's publications within the general area of Midway Point. The agency was conducted by the plaintiffs from premises known as the Midway Point Supermarket. The agency, it is claimed, was in 1978 leased with the approval of the defendant to Mr and Mrs Kessarious who then became tenants of the supermarket and newsagency business conducted therefrom, eventually vacating the same on the 31 July 1986. On the 1 August 1986 the defendant ceased to supply its publications to the supermarket but, it is alleged, supplied them to Mr and Mrs Kessarious at another address in Midway Point from which the latter began to conduct a newsagency business on their own account. The plaintiffs have claimed damages for loss and damage, particularised in the statement of claim delivered with the writ, in the sum of $60,000, being "the market value of the plaintiffs' Mercury agency". The gravamen of the claim is that the defendant cannot terminate the franchise agreement, save for breach thereof or, alternatively, save on reasonable notice.

1. The plaintiffs' present application is firstly to join two further plaintiffs and two further defendants in the action and, secondly, to deliver an amended statement of claim. Many of the amendments are not opposed by the defendant, but the addition of the parties and the amendments which effectively expand the action to include a claim for the tort of conspiracy between the defendant and Mr and Mrs Kessarious (who are the proposed further defendants) against the plaintiffs are opposed. Likewise, an amendment seeking damages by way of an allegedly continuing loss of profits is opposed.

1. But for this application there seems no reason why this case should not be brought on promptly for trial. The defendant says that as the agreement in question is one commonly used throughout the State for the distribution of its publications, it has an interest in having the controversy as to its proper interpretation resolved without delay and I think there is some merit in that argument. Nevertheless, it would not be fair to say that there has been any significant overall dilatoriness in the progress of the action. It started off with vigour, pleadings and particulars were delivered with promptness and discovery put in train. In the last six months, however, the matter has not progressed at the same rate.

1. To grant the amendments which seek to rely on a separate cause of action in tort and which necessitate the joinder of two further defendants must cause a substantial delay in getting the matter to trial. The new parties may wish to be separately represented and a great many interlocutory steps will have to be duplicated. Refusal of the relief sought will not debar the plaintiffs from seeking a remedy against the defendant and the two proposed additional defendants in other proceedings (cf with Commonwealth Dairy Produce Equalisation Committee Ltd. v McCabe (1938) 38 SR(NSW) 397 at p400. Furthermore, as Lord Esher MR pointed out in Bentley v Black (1893) 9 TLR 580:

"It has long been the universal practice, except in most exceptional circumstances, not to allow amendments for the purpose of adding a plea of fraud where fraud is not pleaded in the first instance."

1. In my opinion it would be prejudicial to the defendant and unjust to allow such amendments to be made at this stage.

1. I am also of the view that it would be unjust and inappropriate to permit the plaintiffs to add a claim for loss of profits at this stage. They have sought the full market value of the agency, treating it as a capital loss. Even now they make no attempt to quantify this additional claim for loss of profits, saying only that "the plaintiffs' special damages continue to accrue and further particulars will be given prior to the trial of this action". In these circumstances I am not prepared to allow such an amendment.

1. The plaintiffs will have leave to amend by substituting the following paragraphs of the amended statement of claim annexed to the summons (but deleting references to the additional parties as parties and with consequential deletions to the existing parties as first and second named plaintiffs and first named defendant): paragraphs 1–14 inclusive, 16, 20, 22–25 inclusive and so much of paragraph 26 as repeats the substance of paragraph 13 of the original statement of claim.