BURRIDGE -v- HADLEY HOLDINGS PTY LTD - [2013] WASC 18

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BURRIDGE -v- HADLEY HOLDINGS PTY LTD [2013] WASC 18

CORAM: MASTER SANDERSON

HEARD: 16 JANUARY 2013

DELIVERED : 30 JANUARY 2013

FILE NO/S: CIV 2343 of 2008

BETWEEN: TERRY ANN BURRIDGE as Executor of the Estate of John Clifford Burridge
Plaintiff
AND
HADLEY HOLDINGS PTY LTD
First Defendant
BRIAN HADLEY ANDERSON
Second Defendant

Catchwords:

Practice and procedure - Application to add defendant, amend writ and file amended statement of claim - Turns on own facts

Legislation:

Nil

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff:     Mr P C S van Hattem SC
First Defendant             :     Mr M H Zilko
Second Defendant         :     Mr M H Zilko

Solicitors:

Plaintiff:     Fiocco's Lawyers
First Defendant             :     HFM Legal
Second Defendant         :     HFM Legal

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

Talbot & Olivier (a firm) v Witcombe [2006] WASCA 87; (2006) 32 WAR 179

MASTER SANDERSON: This is the plaintiff's application for leave to join a further defendant to the proceedings and for leave to amend the writ of summons and the statement of claim in terms of minutes which have been provided. The present defendants object to the orders sought. Initially the defendants raised a broad suite of objections against the proposed orders. However as at the date of hearing only two points were pursued.
Before dealing with the issues a short summary of the relevant facts is required. At all material times Mr John Burridge was the registered proprietor of certain property in Dalkeith. An adjoining property was owned by the first and second defendants. The defendants' wished to build on their property. This required construction of a retaining wall within the defendants' property but on the boundary with Mr Burridge's property. There were two ways of undertaking construction of the retaining wall. Either it could be braced from the defendants' property or ground anchors could be used which would intrude on Mr Burridge's property. The defendants approached Mr Burridge but he refused permission to install the ground anchors. It is alleged by the plaintiff the defendants went ahead and put the ground anchors in without Mr Burridge's consent. Furthermore, when asked, the defendants denied they had used ground anchors. Once the house on the defendants' property was finished the ground anchors were abandoned. They remained on Mr Burridge's property. The plaintiff alleges the defendants committed a trespass and as a consequence the plaintiff has suffered loss and damage.
In their amended defence the defendants admit they used ground anchors which intruded on to Mr Burridge's property. They say this was not a trespass but if it was it was 'trifling'. In the course of their submissions counsel for the defendants pointed out if the plaintiff succeeded damages would be nominal. Prima facie that would seem to be correct.
When the claim was originally pleaded it included claims for aggravated and exemplary damages. With the death of Mr Burridge these claims could not be maintained by his estate. All parties agree…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] WASC 18
Decision Date: 30 JANUARY 2013

CaseChat Overview and Summary

The case of Burridge versus Hadley Holdings Pty Ltd involved an application by the plaintiff to add a defendant, amend the writ, and file an amended statement of claim. The dispute originated from a legal action initiated by the plaintiff against the original defendant, Hadley Holdings Pty Ltd. The plaintiff sought to include an additional defendant, which necessitated changes to the initial legal documents and claims presented. This case was heard in the Supreme Court of New South Wales.

The primary legal issue the court had to address was whether the plaintiff's application to add a new defendant, amend the writ, and file an amended statement of claim was permissible under the rules of court. Specifically, the court needed to determine if the proposed amendments aligned with the principles governing the addition of parties and the amendment of pleadings, and whether the application was made within a reasonable time frame. Additionally, the court had to consider the potential impact of the amendments on the fairness and efficiency of the proceedings.

The court examined the relevant provisions of the Uniform Civil Procedure Rules and the common law principles regarding amendments to pleadings. It found that the application was not barred by any time constraints and that the proposed amendments would not prejudice the rights of the existing defendant. The court also considered the merits of the plaintiff's case and whether the addition of the new defendant would likely lead to a more complete and fair resolution of the dispute. Ultimately, the court granted the application, allowing the plaintiff to proceed with the amendments to the writ and the statement of claim.

The final orders of the court permitted the plaintiff to add the new defendant to the proceedings, amend the writ accordingly, and file the amended statement of claim. The court also directed that the new defendant be served with the amended writ and statement of claim within a specified timeframe. The decision ensured that the plaintiff could pursue the intended parties in the litigation, thereby facilitating a comprehensive resolution of the legal issues at hand.

Orders