APT Finance Pty Ltd v Wingside Nominees Pty Ltd [No 2]

[2009] WASCA 235

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   APT FINANCE PTY LTD -v- WINGSIDE NOMINEES PTY LTD [No 2] [2009] WASCA 235

CORAM:   WHEELER JA

NEWNES JA

HEARD:   20 OCTOBER 2009

DELIVERED          :   22 DECEMBER 2009

FILE NO/S:   CACV 54 of 2009

BETWEEN:   APT FINANCE PTY LTD (ACN 080 974 278)

Appellant

AND

WINGSIDE NOMINEES PTY LTD (ACN 078 036 281)
First Respondent

CHRISTOPHER PETER GALE
STEPHANIE LEE GALE
Second Respondents

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

File No  :CIV 1532 of 2004

Catchwords:

Practice and procedure - Application to join or substitute plaintiff - Delay in commencing application - Acquiescence of other parties in delay - Waiting for outcome of appeal concerning similar issues - Reliance on Limitation Act point not raised below - Turns on own facts

Legislation:

Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA), O 18 r 6, O 18 r 7(2)
Supreme Court Act 1935 (WA), s 60(1)(f)

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Appellant:     Mr P N Bevilacqua

First Respondent           :     Mr D Vilensky

Second Respondents     :     Mr D Vilensky

Solicitors:

Appellant:     Price Sierakowski

First Respondent           :     Bowen Buchbinder Vilensky

Second Respondents     :     Bowen Buchbinder Vilensky

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

APT Finance Pty Ltd v Bajada [2008] WASCA 73

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621

House v The King (1936) 55 CLR 499

Lancaster Banking Company v Cooper (1878) 9 Ch D 594

Southern Cross Pipelines Australia Pty Ltd v Kenneth Comninos Michael Western Australian Independent Gas Pipelines Access Regulator [2002] WASC 149

The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40

Wilson v Metaxas [1989] WAR 285

WHEELER JA: 

Introduction

1. This is an application for leave to appeal and, if leave is granted, an appeal against a decision by Master Sanderson to refuse the appellant leave to join a second plaintiff, Seiza Investments Pty Ltd (Seiza), in the Supreme Court matter CIV 1532 of 2004.  Although in form an application for joinder of a party, it appeared at the hearing of the appeal that what the appellant actually sought was to substitute Seiza as plaintiff in the action against Wingside Nominees Pty Ltd (Wingside) and Christopher Gale, and to join Seiza as a second plaintiff against Stephanie Gale.  This position was not clearly articulated before the master.  The matter has an unhappily confused and complex history.

The main proceedings and the chain of assignment

1. In the action, the appellant alleges that it made two loans, one to the first respondent (Wingside) and another to the first‑named second respondent (Christopher Gale) pursuant to loan deeds dated 31 May 2001. These two loans were supported by a guarantee and indemnity granted by the second respondents (Christopher and Stephanie Gale) on 25 May 2001. 

2. It appears from the appellant's chronology that on 13 April 2002, an unsecuritised assets deed was executed in order to assign a number of the appellant’s loans and "related securities" (which were not defined in the deed) from the appellant to ZCM Matched Funding Corporation (ZCMMF).  By a loan assets offer deed dated 25 July 2002 and a deed of novation dated 26 July 2002, the loans and related securities were assigned from ZCMMF to Zurich Capital Markets Asia Ltd (ZCMA).  On 14 October 2002 and 7 November 2002, demands for payment of the loans were made by the appellant to Wingside and Christopher Gale.  The demands were not met and on 24 February 2003, the appellant commenced an action in the District Court for recovery of the debts and enforcement of the guarantee against Christopher and Stephanie Gale.  By a loan assets offer deed and a deed of novation dated 16 April 2003, the loans and related securities were assigned from ZCMA to Zurich Capital Markets Australia Structured Finance Ltd.  On 29 September 2003, the assignee's name changed to Zed Capital Markets Australia Structured Finance Pty Ltd (Zed).  By a loan assets offer deed dated 26 September 2003 and an undated deed of novation, the loans and securities were assigned from Zed to Challenger Life No 2 Ltd (Challenger).

3. On 19 March 2004, an order was made that the action commenced by the appellant be remitted to the Supreme Court.  By a deed of novation and a loan assets offer deed dated 8 November 2004, the loans and securities were assigned from Challenger to Seiza.  A notice of assignment in relation to the loans was provided to Christopher Gale on 13 May 2005 and to Wingside on 2 June 2005.

Delay, Bajada action, and more delay

1. As I have noted above, a notice of assignment in relation to the loans was given to Christopher Gale in May 2005 and Wingside in June 2005.  On 10 June 2005, the solicitors for the appellant sent a facsimile to the solicitors for the respondents noting that, due to an assignment of the interests in the loans, a further amendment to the statement of claim was required, as indeed it was.  On 14 June 2005, the solicitors for the respondents advised that they were awaiting service of the minute of proposed further re‑amended statement of claim, for consideration by their clients. 

2. Nothing then happened for four weeks, and on 13 July 2005 the solicitors for the appellant sent a facsimile to the court, copied to the solicitors for the respondents, advising that an application for leave to substitute/join a plaintiff and make consequential amendments to the writ and statement of claim was being prepared.  The respondents' solicitors responded promptly to that facsimile, advising on 20 July that:

   Whatever position our clients take on that issue, if Seiza Investments Pty Ltd were joined or substituted as the plaintiff (and we do not at this stage concede that is necessarily either possible or appropriate), it ought to be on the following terms …  

   The letter then set out proposed terms relating to costs.

3. Following the letter of 20 July 2005 from the respondents' solicitors, absolutely nothing happened in relation to the proposed joinder or substitution for a number of years.  It appears that the letter from the respondents' solicitors was never favoured with a reply. 

4. The next action which, on any view, was even remotely connected with a possible joinder application took place not in relation to this action, but in relation to an action between the appellant and other defendants in a different action, entitled APT Finance Pty Ltd v Bajada.  The defendants were not represented by the solicitors for the respondents to this appeal, but by different solicitors.

5. The Bajada action had certain similarities to the present action.  In that action, the appellant alleged that it had made certain loans to Bajada, the loans had been assigned, and in due course notice of assignment had been given.  At some time prior to the final assignment to the last of the parties in the chain of assignments, demand for repayment was made and the money was not repaid.  The appellant applied for an order for the substitution of Seiza as plaintiff  in that action.  That application was made on 21 November 2005, and was dismissed on 10 April 2006. 

6. The appellant asserts that, because of the similarity of issues between those arising in its substitution application in Bajada and in its joinder/substitution application in these proceedings, it was reasonable to take the view that an application for joinder/substitution in these proceedings would be refused, in the same way that the application in Bajada had been refused, and that it was therefore reasonable for it to defer action in these proceedings pending the outcome of the appeal which it proposed to undertake, and in fact did undertake, in Bajada.

7. It is important, however, to note that, whatever the merits or otherwise of the argument in relation to the perceived need to await the outcome of the appellate process in the Bajada action, the period of delay between May or June 2005 (when the notices of assignment were given) and April 2006 (when the application for joinder in Bajada was dismissed) remains entirely unexplained. 

8. At a status conference on 20 June 2006, case management of these proceedings was adjourned sine die pending the outcome of the appeal in Bajada.  That appellate process took some time.  While it was proceeding, and apparently in response to requests from the court seeking information, facsimiles were sent to the court by the appellant's solicitors, and copied to the respondents' solicitors, on 4 April 2007 and on 1 November 2007, advising that the appellant's solicitors were awaiting instructions pending the outcome in Bajada before proceeding further with the matter.

9. On 10 March 2008, Bajada was argued in this court.  During the course of argument, the substantive issue in the appeal was conceded by the respondents to that appeal, it being accepted that the basis upon which the decision was made not to allow the substitution was erroneous.  However, it was submitted by the first respondent that the substitution should be refused on the ground of delay, and also because the evidence did not establish that there had been valid assignments of the debts to Seiza.

10. On 31 March 2008, judgment was delivered in Bajada (APT Finance Pty Ltd v Bajada [2008] WASCA 73).  There are two matters which it is important to note about that decision.  First, at [42] of the reasons, the court did not accept the submission that the delay in that case between giving notice of the assignment in May 2005 and the bringing of the application for substitution in November 2005 was excessive, so as to justify the refusal of the application on the ground of delay.  The court, however, impliedly accepted that delay might be a factor which might lead to refusal of such an application, since it said (at [42]), "While there was some delay in bringing the application, in the circumstances we do not consider it to be so great as to justify refusing the application".  Second, the court specifically noted, at [35], that it was not necessary to consider (the matter not being an issue in the appeal) whether an application for substitution of the kind there in question could succeed where the limitation period had already expired.  On a reading of those reasons, the solicitors for the present appellant cannot have failed to understand two things:  first, that delay might, in some circumstances, lead to an application being refused; and second, that the expiry of the limitation period might have a bearing upon whether or not an application of this kind would be successful.

11. For some reason, it was another two months before the appellant's solicitors communicated with the respondents' solicitors about the long foreshadowed joinder application, and that facsimile of 26 May 2008 only advised that the appellant had been successful in the Bajada matter and were "seeking instructions" on an application for Seiza to be substituted as plaintiff.  There is no evidence before us of any further communication until 26 August 2008.  On that date, there was a status conference at which Registrar Dixon ordered that any application by Seiza to be substituted as plaintiff be filed and served by 7 October 2008.  No application was made on or before 7 October 2008; rather, on that date it appears that Seiza's solicitors in New South Wales advised the appellant's solicitors that Seiza had been placed in administration.  The appellant's solicitors then sent a facsimile to this court, copied to the respondents' solicitors, advising that an administrator had been appointed and that the administrator was currently considering the position in relation to all court actions involving Seiza.

12. On 14 October 2008, a further status conference was adjourned sine die.  By facsimile dated 3 December 2008, the appellant's solicitors informed the court that they were still seeking instructions.  On 20 January 2009, the appellant's solicitors wrote to the respondents' solicitors stating that they had instructions to commence the application.  The chamber summons commencing the application was, in fact, filed on 10 February 2009.  In the meantime, the appellant now asserts, the limitation period had expired.  The appellant did not identify a date for the expiry of the limitation period, but the appellant's chronology would suggest some time around mid‑October to early November 2008. 

13. It should be noted that the chronology set out above is, so far as the material before this court is concerned, an exhaustive one.  That is, there is no explanation proffered for the delay between the delivery of reasons in Bajada and 7 October 2008.  There is no explanation of why it took the administrator so long, after 7 October 2008, to consider its position.  Apart from a relatively short period of delay which would be explicable by the administrator's need to understand the matters in which Seiza was involved, there is therefore no explanation for the delay between 31 March 2008 and 10 February 2009.  The period of completely unexplained delay (even if one accepts that awaiting the outcome of similar, but unrelated, proceedings is an adequate explanation for delay) is just shy of two years.

Reasons of Master Sanderson

1. The application filed on 10 February 2009 was one for substitution of Seiza as plaintiff.  At the hearing of the application, Master Sanderson granted the appellant leave to amend its chamber summons, so that the application was one to join Seiza as second plaintiff, rather than to substitute Seiza as a plaintiff.   There was no minute of amended statement of claim provided to either the respondents or to the master, and it is apparent from the course of argument that both were understandably confused about whether what was sought was substitution or joinder.  In fact, as noted earlier, it was both. 

2. The master, in his reasons, noted the long and inactive history of the matter since its commencement in the District Court in 2003, saying that the application had been marked by "spectacular inactivity".  He noted that, although the correspondence attached to affidavits showed that appellant was aware of the need to add Seiza as a plaintiff since 2005, no action had been taken until 2009.  The two explanations offered for that delay in making an application were that appellant was waiting for the delivery of the Court of Appeal decision in Bajada, and the fact that Seiza was in administration for some of that period.  The master said there was a "yawning gap in the evidence", and "no real explanation for why the lengthy delay in making an application arose".  Those observations were plainly correct.

3. In weighing up the benefits and detriments of refusing the application, the master noted that a refusal to grant the application would require separate proceedings to be issued by Seiza, which could delay the appellant's proceedings if an application were made to consolidate them.  Although case management principles could favour granting the application, he concluded that "the delay has been so significant that Seiza Investments cannot call upon the discretion of the court to assist its case".  The merits of the application satisfied the low threshold required to show that Seiza might have a claim against the respondents, but the merits of the case were not so strong that they warranted the granting of the application after the substantial period of delay.  Leave to join Seiza as second plaintiff was refused.

The appeal

1. On 14 May 2009, the appellant filed an appeal notice against Master Sanderson's decision to refuse leave for Seiza to be joined as second plaintiff.

2. The appellant was granted leave to amend its ground of appeal at the hearing and the amended ground reads as follows:

   The learned Master erred in law in failing to exercise his discretion to grant the application to add a party, Seiza Investments Pty Ltd in APT Finance Pty Ltd v Wingside Pty Ltd & Ors CIV 1532 of 2004 (APT v Wingside Proceedings), pursuant to Order 18 Rule 6(2) of the Rules of the Supreme Court (Rules) on the basis that the delay in commencing the application was so significant that it would be unfair and inappropriate to grant the application.

   PARTICULARS

   (a)The learned Master erred in fact in finding that there was no decision on the part of the Appellant and Seiza to suspend the making of an application to join Seiza until after the outcome of the appeal from the Registrar’s decision of 10 April 2006 in APT Finance v Bajada, District Court of Western Australia CIV 2924 of 2002 (APT v Bajada Proceedings).

   (b)The learned Master erred in law in not considering and deciding whether the First and Second Respondents were estopped from relying, for the purposes of establishing unfair and inappropriate delay on the part of the Appellant, [on] the period between July 2005, when the issue of joinder was first raised by the Appellant, and 31 March 2008, the date of delivery of the decision in APT v Bajada [2008] WASCA 73.

   (c)The learned Master erred in law in finding that a properly advised Appellant should have realised that the application in APT v Wingside Proceedings involved the addition of a party and not the substitution of a party as in the APT v Bajada Proceedings and was therefore a different situation.

   (d)The learned Master thereby erred in law by relying, for the purposes of establishing unfair and inappropriate delay on the part of the Appellant, [on] the period between 21 November 2005 and 31 March 2008.

   (e)The learned Master did not take into account or give sufficient consideration to the fact that if he refused to grant the order sought, the Appellant’s claims would be statute barred under the Limitation Act 2005.

3. Particular (e) was the only material which was additional to the original notice of appeal.  Because it was not in the original notice of appeal and therefore not dealt with in the appellant's written submissions, the respondents had not made written submissions in response.  The oral submissions, on both sides, did not really grapple with all the issues arising from the Limitation Act issue.

Leave to appeal - Principles

1. Section 60(1) of the Supreme Court Act 1935 (WA) provides:

   No appeal shall lie to the Court of Appeal ‑

   ...

   (f)without the leave of the judge or the master or of the Court of Appeal, from any interlocutory order or interlocutory judgment …

2. An appellant from an interlocutory decision of this kind must show that the decision was wrong, or attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed:  Wilson v Metaxas [1989] WAR 285 at 294; The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 53 ‑ 57.

3. This appeal is one against a discretionary decision of the learned master.  Therefore there is a strong presumption in favour of its correctness unless the appellant can show it to be clearly wrong:  Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 627. The appellant appeals from a discretionary decision on a matter of practice and procedure. The appellant must demonstrate an express or implied material error of fact or law: House v The King (1936) 55 CLR 499 at 505.

Joining a party

1. The power to join a plaintiff is found in O 18 r 6(2) of the Rules of the Supreme Court 1971 (WA), which provides:

   At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application ‑

   (a)order that any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

   (b)order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party,

   but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.

1. It is unclear why the appellant has sought to rely on O 18 r 6(2), when there is an express power in O 18 r 7(2) to add an assignee of a cause of action as a party. However, it has been held that O 18 r 6 may also be relied on to permit the substitution of a party in the same circumstances: Bajada.

2. On any application under this rule, it is necessary to determine whether or not the proposed party has an interest which makes it necessary for it to be before the court for the effectual and complete determination and adjudication of all matters in dispute in the cause.  It has been held that the court has a discretion to refuse an order for joinder:  Lancaster Banking Company v Cooper (1878) 9 Ch D 594. However, it is difficult to justify the exclusion of a party whose presence is necessary for the effectual determination and adjudication of matters in dispute and, consequently, it would seem that any discretionary power to decline an order would generally be confined to practical matters of convenience or disruption which might tell against the late admission of such a party: Southern Cross Pipelines Australia Pty Ltd v Kenneth Comninos Michael Western Australian Independent Gas Pipelines Access Regulator [2002] WASC 149 at [8].

3. It is important to note, however, that the appellant does not assert in this appeal that the learned master applied a wrong test.  There might be reason to doubt his observation that "the two important principles" are the delay and the merits of the case.  The overriding principle is the more general one identified above.  However, delay may be relevant to that issue.  The appellant accepts that delay is relevant in the present case, but asserts that the master erred in his approach to the appellant's delay.

Particular (a) – No firm decision to delay

1. Particular (a) alleges that the learned master erred in finding that it was not clear that "a firm decision" had been made by the appellant and Seiza to hold the application in abeyance. However, it appears from the master’s reasons that he was prepared to accept that Seiza had taken the view that pending determination of the Bajada appeal, nothing should be done about an application (ts 2 ‑ 3).  Although he noted that the appellant's position did not emerge clearly from the evidence before him, he accepted that such a decision had been made.  This particular is, in any event, concerned with a passing reference by the master to the lack of clarity in the evidence. It was not pressed at the hearing of the appeal, and it has no merit. 

Particular (b) – Acquiescence of the respondents in delay

1. This particular alleges that "the learned master erred in law in not considering and deciding whether the first and second respondents were estopped from relying, for the purposes of establishing unfair and inappropriate delay… on the period between ... when the issue of joinder was first raised … and the date of delivery of the decision in [the Bajada appeal]".  It is submitted that the respondents were aware of the adjournment of the matter, pending the outcome in the Bajada appeal, and that their failure to take issue with the adjournment amounted to acquiescence which gave rise to an estoppel.

2. "Estoppel" is an inappropriate term to use in this context.  What is really suggested is that the failure of the respondents to object to the delay means that it would be unjust to permit them to rely on it now.  This issue was not argued in those terms before the master.  However, the appellant submits that the circumstances of the delay and the lack of complaint from the respondents were before the master, and that it was argued before the master that it would be unfair to rely on the delay given the respondents' acquiescence in such a course.  While I accept that the lack of complaint about the delay was raised as a relevant issue below (ts 47, 50, 51), it was not suggested that the respondents' conduct in failing to oppose the suspension of case management, or in failing to "hurry along" the matter amounted to an acquiescence in, or tacit acceptance of, the delay.

3. From my understanding of the appellant's submissions to the master, particularly at ts 47 ‑ 50, it seems that lack of complaint was relied on as evidence that no prejudice to the respondents had been caused by the delay.  The argument advanced before the master was that "whilst there has been some delay, it is explainable … that this is not an occasion where the delay is so extreme that the interests of finality in litigation ought to be given paramount importance" (ts 51).  The appellant's attempt to "re‑characterise" its case on appeal to raise a new issue of estoppel or general "acquiescence" by the respondents seems to be an attempt to bolster its case with a point not taken below.  No error has been made by the master in failing to consider an argument which was not advanced before him.

4. Alleged acquiescence may also be relevant to particulars (c) and (d), below.

Particulars (c) & (d) – Reasonableness of waiting for outcome in Bajada

1. Particulars (c) and (d) both challenge the view, which may be implicit in the master's reasons, that waiting for the outcome of the Bajada appeal was not a reasonable explanation for the delay.

2. Particular (c) alleges that the master erred in finding that a properly advised appellant would have realised that this case involved the joinder of a plaintiff, rather than a substitution, and therefore in concluding that the Bajada appeal was "an entirely different case" which would give little assistance to the outcome of the application.  The appellant submits that the outcome of the Bajada application in the District Court would have had a decisive impact on the outcome of the application in these proceedings, and that therefore it was reasonable to wait for the resolution of the appeal before commencing the application in this case. 

3. As I have noted, the application before the master was for joinder, not substitution, and was at least arguably distinguishable from Bajada. However, the proposition the appellant endeavoured to articulate before the master was, I accept, that in relation to the actions against Wingside and Christopher Gale, the effect of what it sought to do was to substitute a plaintiff under O 18 r 6. That being so, the first instance decision in Bajada, that O 18 r 6 could not be relied upon in such circumstances, might, if followed, have prevented the appellant from gaining the substitution it sought in this action.

4. I accept that the master erred in finding that the Bajada appeal was on an entirely different issue from the one arising in the application before him. The misunderstanding was understandable given the way the application was presented, but, accepting that there was a misapprehension, it is necessary to consider whether it was reasonable for the appellant to await the outcome of the appeal prior to commencing action, which is the subject of particular (d).

5. Particular (d) contends that the master erred in relying on the delay between 21 November 2005 (when the application for joinder was made in Bajada) and the date of delivery of the reasons in the Bajada appeal, 31 March 2008.  The date of 21 November 2005 is clearly irrelevant, but during the appeal hearing, counsel for the appellant relied upon the date of the status conference of 20 June 2006.  The appellant submitted that the fact that case management had been suspended meant that the delay was appropriate and that it was legitimate for the appellant to wait for the outcome of the Bajada appeal before taking action. 

6. I do not consider that the suspension of case management necessarily establishes that there were valid reasons for failing to commence an application, so that the delay during that period cannot be considered.  The appellant did not point to any authority to the effect that it will always be reasonable to delay the commencement of proceedings where there is a pending appeal which may affect the chances of success, or which may even be determinative of the outcome.  To delay the determination of civil proceedings until an appellate court, in different proceedings, clarifies the law on a particular point, could protract litigation for years, as vividly illustrated in this case.  If such a course were adopted by every litigant, the filing of many appeals would cause bottlenecks in the civil justice system, where all matters which deal with similar legal issues would be placed in abeyance or adjourned until the resolution of the appeal.  In assessing whether it is reasonable to await other proceedings, much will depend upon the similarity of the issues, the importance of the point under consideration, and the likelihood that the decision under appeal will be regarded as a precedent.

7. For the purpose of this application, I am prepared to assume, without deciding, that the issues in Bajada were very similar, and were always perceived by the parties to be very similar, to the present proceedings.  I doubt whether a master in this court (to which these proceedings had been remitted) would have felt bound to follow a decision of a judge in the District Court (where the Bajada application had been decided) concerning the proper construction of the Rules of the Supreme Court.  However, for present purposes, I assume that it was open to the appellant to think that he would do so.

8. I am also prepared to assume, without deciding, that a combination of the order suspending case management and the failure of the respondents to raise any positive objection to the appellant's inactivity may have led the appellant reasonably to believe that the respondents acquiesced in the course it was taking.  I would not, however, wish it to be understood that, in the general run of cases, a party can simply rely on an opponent's failure to object to delay.  In order to object to delay, a party's solicitors must review the file, however briefly, and draft a letter drawing the relevant facts to the attention of the delaying party.  That activity comes at a cost.  In my view, it is not proper to suggest that a party which has not positively consented to a delay should either incur the legal costs associated with complaining about it, or risk being seen as acquiescing in it.  However, as I have noted, I am prepared, for present purposes, to assume that the appellant's solicitors may have, not unreasonably, considered that the respondents acquiesced in the period of delay between 20 June 2006 and 31 March 2008. 

9. Even leaving aside the period of delay between 20 June 2006 and 31 March 2008 however, there is, as I have noted, still a lengthy period of delay which by itself would have justified the learned master's characterisation of the case as one in which there was a "yawning gap" in the evidence concerning delay.  Even if the period awaiting Bajada is put aside, then, the delay is still very lengthy, unexplained, and inexcusable.

Particular (e) – Limitation period

1. At no point in the appellant’s written submissions before the master was any suggestion made that the limitation period had expired in relation to Seiza's claims. Indeed, at par 16 of the appellant's submissions to the master it was said:

   If the Orders are not made then the resources of the [appellant] and the [respondents] and the Court in respect of these proceedings will have been wasted. Further, Seiza will suffer prejudice in the delay that would have been occasioned by the need to commence fresh proceedings. (emphasis added)

2. During the hearing of the application, the learned master asked counsel for the respondents (at ts 38) whether there were any limitation issues facing Seiza:

   The Master:  … if I were to refuse to join this plaintiff, there would be nothing, would there, to stop proceedings being issued - separate proceedings, which …

   Vilensky, Mr:  By Seiza, nothing at all.

   The Master:  So, there is no question of limitation.

   Vilensky, Mr:  Well, there might be a question of limitation but that is not a matter that … That is not a matter that ought to concern you today, or at all. If fresh proceedings have to be commenced by Seiza and they run into a limitation problem then it is what it is and that is the problem they need to deal with.

   The Master:  Yes, limitation being a defence.

3. In effect, it was put to the master by the respondents, he could put aside any possible limitation issues.  Even after that submission, at no point during oral submissions did the appellant's counsel shift from the position that the only prejudice Seiza would suffer if the application were refused was the cost and delay of commencing fresh proceedings.  The legal proposition that the expiry of the limitation period was not a factor to be considered in an application for joinder was not challenged.

4. It was clearly not an error for the master to accept the proposition impliedly urged upon him by the appellant, that if the orders sought by the appellant were refused, Seiza would be in a position to commence fresh proceedings without being concerned about any limitation issues.  However, it is now suggested to us, by the appellant's counsel, that because the submission made to the master was wrong, it gave rise to an erroneous conclusion which this court should correct.

5. In oral submissions before us, the respondents' counsel appeared to accept, at one point, that any fresh proceedings by Seiza would be liable to be defeated by reliance on the Limitation Act.  However, when asked directly whether it was or was not accepted by the respondents, for the purpose of this appeal, that any of the claims would be statute‑barred, counsel for the respondents said, "I haven't done an analysis … in relation to that.  I am purely going on the paragraph in my friend's submissions.  I have not done an analysis as to whether or not it may or may not be statute barred".  It appears that the argument the respondents would seek to make in relation to that issue would be that, if the claim were statute‑barred, it would not have been open to the master, as a matter of law, either to join or to substitute a new plaintiff.  That apparently had been an argument which the respondents had been prepared to develop before the master if limitation issues had been raised before him, but which was not developed, since the issue was not raised.  The argument was also not developed in any detail on this appeal.  It was an issue left open by the court in Bajada.

6. I note that, because of the way in which the appellant has brought its appeal, and the late raising of the limitation period issue, the respondents are not in a position to concede as a matter of fact that the limitation period had expired.  I also note that the late raising of this issue by the appellant means that the respondents have only been able to make oral submissions in relation to that issue, and that the approach which the respondents would wish the court to take raises issues which are different again from those which the appellant seeks to agitate in the appeal. 

7. In order to deal with the limitation point, I am prepared to make certain assumptions.  One is that it is possible to assert that an interlocutory decision was "wrong" if it was based upon an mistaken factual assumption, even where that assumption was caused, or contributed to, by the conduct of the party seeking to complain about it.  I am prepared to assume, without deciding, that it would have been open to the master to have joined or substituted Seiza as a party, notwithstanding the expiry of the limitation period.  However, even making those assumptions, I would not be prepared to grant leave to appeal.

8. I have already recounted at length the delay which attended this matter.  At least after the delivery of the decision in Bajada, the appellant must have been alert to the possibility that the limitation period might expire, and the fact that its expiry might be relevant to the question of whether an application for joinder would proceed.  It, nevertheless, failed to take any steps to make an application for joinder in a timely way.  It failed to comply with a court order that an application for joinder be made by 7 October 2008.  It apparently failed to seek a variation of that order, and it does not seem from the material before us that it would have been in a position to make an application for joinder on 7 October 2008, even if Seiza had not, by then, been placed in administration. 

9. Further, as I have noted, the appellant made written submissions which can only have encouraged the master in the view that the limitation period had not expired.  It said nothing before the master to attempt to contradict the submission by counsel for the respondents that the limitation period was, in any event, irrelevant.  Finally, when the appellant sought to raise the limitation issue on appeal, it did so at a late stage, and in broad and imprecise submissions which did not adequately raise the issues to which the respondents ought to have responded.

10. If any party can be regarded as the author of its own misfortune, this appellant must fall into that category.  There comes a point at which a

party must suffer the consequences of its own decisions.  In my view that point has been reached in this case.   

Conclusion

1. I would refuse leave to appeal.

2. NEWNES JA:  I agree with Wheeler JA.