BMW Australia Finance Limited v Nelson

[2007] WADC 163

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BMW AUSTRALIA FINANCE LIMITED -v- NELSON [2007] WADC 163

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   23 AUGUST 2007

DELIVERED          :   Delivered Extemporaneously on 23 AUGUST 2007

FILE NO/S:   CIV 556 of 2005

BETWEEN:   BMW AUSTRALIA FINANCE LIMITED (ACN 007 101 715)

Plaintiff

AND

GRAHAME BRETT NELSON
Defendant

Catchwords:

Practice and Procedure - Amendment of Statement of Claim shortly before trial

Legislation:

Hire Purchase Act 1959

Result:

Amendment allowed

Representation:

Counsel:

Plaintiff:     Mr R Cullen

Defendant:     Mr K Staffa

Solicitors:

Plaintiff:     Cullen Babington Hughes

Defendant:     Staffa Lawyers

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

Nil

1. DEPUTY REGISTRAR HEWITT:  At the request of the defendant I provide reasons for my determination of a chamber summons brought by the plaintiff and listed before me on 23 August 2007.  The matter was listed in general chambers and was urgent by virtue of the fact that the trial was scheduled to commence on the following Monday. 

2. By the application the plaintiff sought the leave of the court to amend its statement of claim into the form of a minute presented with the summons.  The essential variations sought to be introduced concerned the statutory requirements which must be met under a hire purchase agreement if the owner is to recover a shortfall on repossession and sale from a hirer.  In particular the minute sought to introduce a reference to the service of a form in the form of schedule 4 to the Act which is, as I understand it, a prerequisite for the successful prosecution of a claim of the kind pursued by the plaintiff.

3. Relevantly the defence had raised the issue of compliance with s 13(3) of the Hire Purchase Act 1959, that section containing the statutory requirement for service of a fourth schedule notice as a pre‑requisite to the owner having a right of recovery against a hirer for a shortfall on repossession and sale. 

4. In so far as the amendments sought to introduce an allegation of that kind it seemed to me that it would come as no surprise to the defendant, having previously raised the issue in a defence and that in so far as the amendments sought to introduce a reference to the service of such a schedule it should be permitted.

5. The next issue concerned an amplification of existing pleadings concerning the third schedule notice which although coming late appeared to me to be relatively innocuous.  The final amendment was to admit a payment alleged by the defendant but hitherto denied by the plaintiff. 

6. In hearing the application I formed the view that the amendments were largely of a technical nature, were to some extent embedded in the issues raised by the pleadings as they stood, and that even though the amendment came at the eleventh hour none the less prejudice to the defendant was not significant.  I therefore allow the amendment after making some adjustment to the form of the minute presented to me to remove what I regarded as inappropriate content and made orders intended to preserve the right of the defendant to seek an adjournment and costs should that prove necessary in the light of the last minute amendment.