Bradenthorpe Pty Ltd v Leeche Earthmoving Pty Ltd

[2004] VSC 543

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6196 of 2000

BRADENTHORPE PTY LTD (ACN 074 646 549) AND ANOTHER	Plaintiffs
v
LEECH EARTHMOVING PTY LTD (ACN 005 001 132) AND OTHERS	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 NOVEMBER 2004
DATE OF RULING:	24 NOVEMBER 2004
CASE MAY BE CITED AS:	BRADENTHORPE PTY LTD v LEECH EARTHMOVING PTY LTD
MEDIUM NEUTRAL CITATION:	[2004] VSC 543

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Practice and Procedure – Application to amend statement of claim including to amend the statement of the composition of the plaintiff partnership – Plaintiff suing in firm name pursuant to r.17.01(1) of the Supreme Court (General Civil Procedure) Rules 1996 – Change in the statement of the composition of the plaintiff partnership allowed pursuant to r.36.01(1), not r.36.01(4) nor r.9.06.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G.K. Moore	Baird & McGregor
For the first and fourth Defendants	Mr P.G. Cawthorn	Lawsons McDonald Scott & Waters
For the second Defendant	No appearance

HIS HONOUR:

1. This is an application by the plaintiffs to make a number of amendments to the statement of claim. The application was made on the first day of the hearing when the first and fourth defendants were represented by Mr Cawthorn of counsel. The claim against the third defendant had been previously discontinued. The claim against the second defendant was still on foot, but the second defendant did not appear at the hearing. The solicitors previously acting for him had filed a notice that they had ceased to act pursuant to r.20.03(1) of the Supreme Court (General Civil Procedure) Rules 1996 (“the Supreme Court Rules”).

1. The only issue raised by Mr Cawthorn related to the pleading of the allegation that the composition of the second plaintiff, L & J Myers & Sons, had changed at a relevant time.  I should interpolate that prior to my ruling on this issue, the plaintiffs settled with the first and fourth defendants.  Nevertheless, the issue raised does have relevance in respect of the continuing claim against the second defendant.

1. The claim was originally brought by Bradenthorpe Pty Ltd and L & J Myers & Sons (a Firm). In the circumstances, the description of the second plaintiff was permitted by r.17.01(1) of the Supreme Court Rules. It was pleaded in the statement of claim that the second named plaintiffs are and were at all material times a farming partnership comprised of Lindsay Anderson Myers, Jean Isobel Myers, Alan Lindsay Myers, Lois Merle Myers, David Thomas Myers and Alison Mary Myers. A contract with the second defendant, Kevin McIlvena, is said to have been entered into in or about late October 1995. The second defendant was an engineer who agreed to draw up and certify engineering plans, computations and specifications for the construction of a dam on one part of the partnership’s properties, supervise the construction of the dam in accordance with the engineering plans, computations and specifications and with the lawful requirements of the Goulburn Valley Water Authority. It was further agreed that, upon completion of the dam, the second defendant would certify to the Authority that the same had been completed to design. In addition, it is pleaded that the second defendant owed a duty of care to carry out those tasks in a skilful and workmanlike manner.

1. By the relevant amendments the plaintiffs seek to amend the paragraph of the statement of claim relating to the composition of the second named plaintiff by adding that the six individuals comprised the partnership “prior to about 28 June 1996” and that “between 28 June 1996 and 1 July 2002”, the partnership, with the same name, comprised Lindsay Anderson Myers, Jean Isobel Myers, Burn-brae Agriculture Pty Ltd and Tourello Pastoral Company Pty Ltd.  That is, on or about 28 June 1996, the composition of the partners changed by the two Myers sons and their respective wives ceasing to be partners and being replaced by corporate entities.

1. Mr Moore of counsel, who appeared for the plaintiffs, submitted that this was a case of amendment under r.36.01(4), whereas Mr Cawthorn, when he was opposing the amendment, submitted that it was more a case of an addition of parties under r.9.06.  Mr Cawthorn submitted that as the partnership is not a legal entity, it is as though the six individuals themselves were suing and that, by virtue of the change, two additional entities were sought to be added into the equation, that is the two corporate bodies.

1. The importance of deciding whether the application is under order 36 or order 9 is that ordinarily any amendment under order 36 is an amendment to a document which is then treated as having taken place when the document was first filed, whereas the addition of a party under order 9 generally only takes effect from the date of the amendment.[1]

   [1]See Bridge Shipping Pty Ltd v Grand Shipping S.A. (1991) 173 CLR 231.

1. Very briefly, it seems to me that this is neither an application to amend the name of a party nor an application to add or substitute parties.  The description of the second plaintiff remains the same:  “L & J Myers & Sons”.  What is in effect being sought is to amend the part of the pleading which described the parties who originally formed the partnership.

1. In terms of order 36, it seems to me that this is a case where, even if the limitation period which may be relevant to this issue has expired, I could be satisfied that a defendant in this case would not by reason of the order be prejudiced in the conduct of his claim or defence, in a way that could not be fairly met by an adjournment, award of costs or otherwise (see r.36.01(6) of the Supreme Court Rules), because the claim is still brought by the partnership, the named party. The second defendant is not in a situation of suddenly, more than six years after the event, having to face a claim about which he had had no previous notice. He has been well aware that there is this claim by the partnership. All that has arisen is that on further examination it has been realised that, at an important and relevant date, the composition of the partnership changed.

1. Therefore, it seems to me that this is simply an application under r.36.01(1).  It is not an application under r.36.01(4), because it is not a case of a mistake in the name of the party.  It is just an amendment to the pleading setting out who, at the relevant times, constituted or comprised the partnership.  In the normal course of events that amendment to the statement of claim will be treated as having taken place from the commencement of the proceeding.  This will remove any potential problem, as I understand it, concerning the expiration of the limitation period.

1. As the other proposed amendments are non-controversial, and notice of all of the amendments has been given to Mr McIlvena, I will grant the plaintiffs leave to file the proposed fifth amended statement of claim.

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