Bride v The Australian Bank Ltd
[1999] WASC 122
•6 AUGUST 1999
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BRIDE & ANOR -v- THE AUSTRALIAN BANK LTD & ORS [1999] WASC 122
CORAM: MASTER BREDMEYER
HEARD: 30 JULY 1999
DELIVERED : 6 AUGUST 1999
FILE NO/S: CIV 1570 of 1999
BETWEEN: EDWARD JAMES BRIDE
WENDY MARGARET BRIDE as TRUSTEES OF THE PINWERNYING FAMILY TRUST
PlaintiffsAND
THE AUSTRALIAN BANK LTD
First DefendantSOUTHERN ROLLED OATS PTY LTD (formerly SOUTHERN FOODS (1986) PTY LTD)
Second DefendantMILNE FEEDS PTY LTD
Third Defendant
FILE NO/S :CIV 1804 of 1989
BETWEEN :EDWARD JAMES BRIDE
WENDY MARGARET BRIDE as TRUSTEES OF THE PINWERNYING FAMILY TRUST
PlaintiffsAND
PEAT MARWICK MITCHELL
Defendant
Catchwords:
Parties - Application to join a defendant
Legislation:
Supreme Court Rules, O 18 r 6(2)(b)
Result:
Application dismissed
Representation:
CIV 1570 of 1999
Counsel:
Plaintiffs: In person
First Defendant : Ms C H Thompson
Second Defendant : Ms C H Thompson
Third Defendant : No appearance
Solicitors:
Plaintiffs: In person
First Defendant : Freehill Hollingdale & Page
Second Defendant : Freehill Hollingdale & Page
Third Defendant : No appearance
CIV 1804 of 1989
Counsel:
Plaintiffs: In person
Defendant: Ms C H Thompson
Solicitors:
Plaintiffs: In person
Defendant: Freehill Hollingdale & Page
Case(s) referred to in judgment(s):
Royal Brunei Airlines v Tan [1995] 3 All ER 97
Case(s) also cited:
Nil
MASTER BREDMEYER: This is a supplementary judgment to my judgment herein [1999] WASC 110. In that judgment at par 3, I assumed that the proposed new defendant, Australian Quality Ingredients Pty Ltd ("AQI") had not been served with the application. That was an error on my part. I am satisfied that the company has been served.
When an action is already commenced a new defendant can only be joined by a court order. The court's power is found in O 18 r 6(2)(b) of the Supreme Court Rules. The court can order the joinder of a person "on such terms as it thinks just" if the joinder is necessary to ensure that all matters in dispute are effectually and completely determined and adjudicated upon. According to the case law in Seaman at 18.6.5, a person can be joined if the action would directly affect his rights against, or liabilities to, another party in the action. It may be necessary to join a party against whom no order is sought so that he will be bound by the result, but the question to be settled must be one which cannot be effectually and completely settled unless he is a party.
Normally in such an application the court is shown the proposed amended writ and the proposed amended statement of claim which shows the case pleaded against the new party. I have not been shown those documents in this case but I am going to ignore that in the interests of getting to the heart or merits of the application.
I know in broad outline what is alleged against AQI from Mr Bride's affidavit of 4 July 1999 and EJB2 thereto which is a notice from Mr Bride to the directors of AQI dated 8 May 1996. I quote from part of that notice:
"BE WARNED AND TAKE NOTICE
1.The now registered proprietors of the rolled oats mill (mill) being Southern Rolled Oats Pty Ltd (The Southern Group) now and at all material times hold Title of the property on CONSTRUCTIVE TRUST for the Rightful Owners.
2.Possession of the property on or about the 9th August 1984 was obtained by Fraud.
Details thereof: By the use of Fraudulent Notices of Appointment of 'Receivers Managers' on the 9th August 1984 pursuant to Mortgages C646218 and C337514.
3.The 'Rightful Owners' (Bride Family) have lodged a Caveat upon the property to prevent further 'Improper and Unlawful Dealing' in the property.
4.The matters relating to this property are currently subject to Supreme Court of Western Australia Actions being:-
a.1570 of 1989, Application by the Rightful Owners for the return of the property.
b.2197 of 1994, Application by Southern to remove Caveat.
c.FUL 56 of 1995, Appeal by the Rightful Owners to 'Set Aside Judgment' obtained by Fraud by Southern in 1989.
BE FURTHER WARNED AND TAKE NOTICE
5.Any arrangements made between your Company and or Directors and Southern Group will be of no Legal consequence and or effect, as the said arrangements will not have been made with the Rightful Owners.
6.You are now hereby placed on LEGAL NOTICE of the problems between the Registered Proprietors (Southern Group) and The Rightful Owners (Bride Family) and will not be able therefor plead ignorance of the facts in the future."
I am told by Mr Bride that AQI is now the purchaser of the business. So, as the current purchaser of the business, and a company which received the notice mentioned in 1996, is it necessary to join AQI so that all matters in dispute can be effectually and completely determined? Mr Bride says it is. He wants AQI bound by the court orders. I consider that its presence in this action is not necessary for the resolution of the key parts of the plaintiffs' claim. The "misdeeds" of which Mr Bride complains relate to the actions of The Australian Bank and Peat Marwick Mitchell and they concern events that happened years - 10 years or more - before AQI acquired an interest in the mills.
Although no misconduct is alleged against AQI in connection with the plaintiffs' loss of their business in 1984, is it necessary that AQI be joined so that it be bound by the result? Mr Bride would like it to be so. But the question to be asked - as per Seaman quoted above - is whether the question to be settled is one which cannot be settled unless AQI is joined as a party. An example of joinder of this type came before me the other day. Three beneficiaries, three out of five, of a trust sought certain rulings from the court about how the trust was to be administered and sought certain declarations against the trustees and as to their rights as beneficiaries. When decided these orders and declarations would affect vitally all five beneficiaries. Three of them, as I have said, were the plaintiffs, the fourth one was named as a defendant and the fifth one was not joined. The plaintiffs said they did not seek to have the fifth beneficiary joined and sought no orders against her. I ordered her joinder. The court would want her bound by its decision. She had the same interest in the trust as the other four beneficiaries. The court is going to rule on the rights of all the parties to the trusts, ie the rights of the beneficiaries and of the trustees, and would want her bound. The court would not like her coming along at some later time seeking a different ruling from the court on the same matters.
That does not apply here. I consider it is not necessary that AQI be joined in this action. The questions in issue in this case between the present parties can be effectually determined without AQI being made a party.
Moreover, merely purchasing a property with knowledge that the property was acquired by fraud in 1984 and that the vendors, Southern Rolled Oats Pty Ltd, held it on constructive trust for the plaintiffs, would not make AQI a constructive trustee. The plaintiff does not allege that AQI dishonestly procured or assisted in any breach of trust or dishonesty by the other defendants. That is the test. See Royal Brunei Airlines v Tan [1995] 3 All ER 97.
This part of the application will be dismissed.
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