Byass v Energy Power Systems Australia Pty Ltd
[2003] WASC 160
BYASS -v- ENERGY POWER SYSTEMS AUSTRALIA PTY LTD & ORS [2003] WASC 160
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 160 | |
| Case No: | CIV:1017/2001 | 7 AUGUST 2003 | |
| Coram: | MASTER SANDERSON | 19/08/03 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Amendment allowed Amendments to operate from date determined by trial Judge | ||
| B | |||
| PDF Version |
| Parties: | BRIAN BYASS ENERGY POWER SYSTEMS AUSTRALIA PTY LTD (ACN 055 274 514) WESTRAC EQUIPMENT PTY LTD (ACN 009 342 572) CATERPILLAR INC GERALDTON BOAT BUILDERS PTY LTD CATERPILLAR OF AUSTRALIA LTD (ACN 009 332 469) GERALDTON BOAT BUILDERS PTY LTD (ACN 009 097 063) |
Catchwords: | Practice and procedure Application for leave to amend statement of claim when defendants say amendments plead new cause of action which is statute-barred Turns on own facts |
Legislation: | Nil |
Case References: | BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18 Byass v Energy Power Systems [2002] WASC 181 Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431 Morgan v Banning (1999) 20 WAR 474 The Bell Group Ltd (In Liq) v Westpac Banking Corp [2001] WASC 315 Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 Weldon v Neal (1887) 19 QBD 394 ABB Service Pty Ltd v Hetherington [2001] WASCA 417 Allstate Life Insurance Co & Ors v ANZ Banking Group Ltd & Ors (1995) 57 FCR 360 Associated Leisure Ltd (Phonographic Equipment Co Ltd) v Associated Newspapers Ltd [1970] 2 QB 450 Barclays Bank v Cole (1967) 2 QB 738 Bater v Bater (1951) P 35 Beach Petroleum v Johnson (1993) 115 ALR 411 Brickfield Properties Ltd v Newton [1971] 1 WLR 862 Bristow v Anor v Moffat-Virtue (Qld) Pty Ltd [1962] Qd SR 377 Brownlie v Campbell (1880) 5 App Cas 925 City of South Melbourne v Black [1964] VR 403 Derry v Peek (1889) 14 App Cas 337 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Goode v Martin [2001] 3 All ER 562 Hall Chadwick Corp Finance (WA) Pty Ltd v Axiom Properties Ltd [2002] WASC 179 Hammond (as Executor of the Estate of Hammond) v Minister for Works [2001] WASC 284 Hornal v Newberger Products Ltd (1957) 1 QB 247 Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566 Jones v Dumbrell [1981] VR 199 Kalgoorlie Consolidated Gold Mines Pty Ltd & Ors v F L Smidth Inc & Ors [2003] WASC 52 Karedis Enterprises Pty Ltd v Antoniou (1995) 59 FCR 35 Krakowski v Eurolynx Properties Ltd (1995) 130 ALR 1 Millington v Loring (1880) 6 QBD 190 Neat Holdings Pty Ltd v Karagan Holdings Pty Ltd (1992) 110 ALR 449 Nocton v Lord Ashburton [1914] AC 932 Palmdale Insurance Co (In Liq) v L Grollo & Co Pty Ltd [1986] VR 408 Paragon Finance PLC & DB Thakerar & Co [1999] 1 All ER 400 Patterson v Richards [1963] VR 779 Piermay Shipping Co SA and Brandts v Chester (1979) 2 Lloyd's Rep 1 Renowden v McMullin (1970) 123 CLR 584 Robertson & Moffat v Belson [1905] VLR 555 Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 Simonds v Sure Air Pty Ltd [2001] WASCA 172 Smith v Hughes (1871) LR 6 Speidel v Plato Films Ltd [1961] AC 1090 State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499 Stone James (A Firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 Temwood Holdings Pty Ltd v Oliver & Ors [1998] WASC 26 The State of Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 United Bank Ltd v Hussein (2000) 3 CPLR 270 Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409 With v O'Flanagan [1936] 1 Ch 575 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ENERGY POWER SYSTEMS AUSTRALIA PTY LTD (ACN 055 274 514)
First Defendant
WESTRAC EQUIPMENT PTY LTD (ACN 009 342 572)
Second Defendant
CATERPILLAR INC
Third Defendant
GERALDTON BOAT BUILDERS PTY LTD
Fourth Defendant
CATERPILLAR OF AUSTRALIA LTD (ACN 009 332 469)
First Third Party
GERALDTON BOAT BUILDERS PTY LTD (ACN 009 097 063)
Second Third Party
(Page 2)
Catchwords:
Practice and procedure - Application for leave to amend statement of claim when defendants say amendments plead new cause of action which is statute-barred - Turns on own facts
Legislation:
Nil
Result:
Amendment allowed
Amendments to operate from date determined by trial Judge
Category: B
Representation:
Counsel:
Plaintiff : Ms P A Saraceni
First Defendant : Mr S F Popperwell
Second Defendant : Mr S F Popperwell
Third Defendant : Ms L Hunt
Fourth Defendant : Mr I A Morison
First Third Party : Ms L Hunt
Second Third Party : Mr I A Morison
Solicitors:
Plaintiff : Cocks Macnish
First Defendant : Pynt McKay
Second Defendant : Pynt McKay
Third Defendant : Mallesons Stephen Jaques
Fourth Defendant : Machlins Lawyers
First Third Party : Mallesons Stephen Jaques
Second Third Party : Machlins Lawyers
(Page 3)
Case(s) referred to in judgment(s):
BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18
Byass v Energy Power Systems [2002] WASC 181
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Morgan v Banning (1999) 20 WAR 474
The Bell Group Ltd (In Liq) v Westpac Banking Corp [2001] WASC 315
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Weldon v Neal (1887) 19 QBD 394
Case(s) also cited:
ABB Service Pty Ltd v Hetherington [2001] WASCA 417
Allstate Life Insurance Co & Ors v ANZ Banking Group Ltd & Ors (1995) 57 FCR 360
Associated Leisure Ltd (Phonographic Equipment Co Ltd) v Associated Newspapers Ltd [1970] 2 QB 450
Barclays Bank v Cole (1967) 2 QB 738
Bater v Bater (1951) P 35
Beach Petroleum v Johnson (1993) 115 ALR 411
Brickfield Properties Ltd v Newton [1971] 1 WLR 862
Bristow v Anor v Moffat-Virtue (Qld) Pty Ltd [1962] Qd SR 377
Brownlie v Campbell (1880) 5 App Cas 925
City of South Melbourne v Black [1964] VR 403
Derry v Peek (1889) 14 App Cas 337
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Goode v Martin [2001] 3 All ER 562
Hall Chadwick Corp Finance (WA) Pty Ltd v Axiom Properties Ltd [2002] WASC 179
Hammond (as Executor of the Estate of Hammond) v Minister for Works [2001] WASC 284
Hornal v Newberger Products Ltd (1957) 1 QB 247
Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
Jones v Dumbrell [1981] VR 199
Kalgoorlie Consolidated Gold Mines Pty Ltd & Ors v F L Smidth Inc & Ors [2003] WASC 52
Karedis Enterprises Pty Ltd v Antoniou (1995) 59 FCR 35
Krakowski v Eurolynx Properties Ltd (1995) 130 ALR 1
(Page 4)
Millington v Loring (1880) 6 QBD 190
Neat Holdings Pty Ltd v Karagan Holdings Pty Ltd (1992) 110 ALR 449
Nocton v Lord Ashburton [1914] AC 932
Palmdale Insurance Co (In Liq) v L Grollo & Co Pty Ltd [1986] VR 408
Paragon Finance PLC & DB Thakerar & Co [1999] 1 All ER 400
Patterson v Richards [1963] VR 779
Piermay Shipping Co SA and Brandts v Chester (1979) 2 Lloyd's Rep 1
Renowden v McMullin (1970) 123 CLR 584
Robertson & Moffat v Belson [1905] VLR 555
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472
Simonds v Sure Air Pty Ltd [2001] WASCA 172
Smith v Hughes (1871) LR 6
Speidel v Plato Films Ltd [1961] AC 1090
State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499
Stone James (A Firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Temwood Holdings Pty Ltd v Oliver & Ors [1998] WASC 26
The State of Western Australia v Wardley Australia Ltd (1991) 30 FCR 245
United Bank Ltd v Hussein (2000) 3 CPLR 270
Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409
With v O'Flanagan [1936] 1 Ch 575
(Page 5)
1 MASTER SANDERSON: This is the plaintiff's application for leave to amend the statement of claim in terms of a Minute of Amended Statement of Claim ("the minute") dated 19 May 2003. The application raises again the proper approach to be adopted to amendments when there is a dispute as to whether the proposed amendment pleads a cause of action arising out of substantially the same facts as earlier pleaded, when, if the amendment actually raises a fresh cause of action, that cause of action would be statute barred. Determination of these questions involves consideration of O 21 r 5(2) and (5) of the Rules of the Supreme Court 1971, and the operation of the so-called rule in Weldon v Neal (1887) 19 QBD 394. In this Court, the question has been considered in a number of cases, including Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431, Morgan v Banning (1999) 20 WAR 474, The Bell Group Ltd (In Liq) v Westpac Banking Corp [2001] WASC 315 and BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18. In Morgan v Banning, Owen and Wheeler JJ discussed the applicable principles and the operation and effect of the rule in Weldon v Neal. In the Bell and in the BHP cases, the proper approach in a case such as this is foreshadowed. Before applying these principles it is necessary to say something of the nature of the amendments sought to be made by the plaintiff.
2 This case has already been the subject of one successful strike-out application: see Byass v Energy Power Systems [2002] WASC 181. In the course of his reasons, Master Bredmeyer set out the background to the dispute between the parties and made certain determinations with respect to the then statement of claim. Insofar as it is necessary to do so, I would incorporate by reference but without repeating the relevant parts of Master Bredmeyer's reasons.
3 The nature of the dispute between the parties can be illustrated by reference to par 2 of the minute. In marked up form, it is in the following terms:
"2. The First and Second Defendants:
(a) Are and were at all material times duly incorporated pursuant to the Corporations Law and trading corporations pursuant to the Trade Practices Act, 1974 (the 'TPA');
(b) At all material times carried on business as local agents for the manufacturer, the Third Defendant,
(Page 6)
- and were commercial distributors in Western Australia, of Caterpillar engines and in particular Caterpillar diesel engine Model 3408;
- (c) Held themselves out to the Plaintiff as having expertise in the performance capabilities, supply and operation of Caterpillar Engines including model 3408E, by, inter alia, providing oral information and advice and making representations and assurances to the Plaintiff as a prospective purchaser of Caterpillar engines as to the suitability of such engines and in particular Model 3408E rated to 800 hp for use in commercial Rock Lobster fishing vessels operating in the Rock Lobster Fishery of Western Australia, such as the Vessels;
(d)The oral advice and representations pleaded in subparagraph 2(c) above took place from on or about 22 April 1994 to 13 May 1994 between the Plaintiff and Rick Finch, Marine Sales Engineer, of the First Defendant and/or of the Second Defendant, including at a meeting at the Newmarket Hotel, Hamilton Hill, between the Plaintiff and Rick Finch during which conversations Mr Rick Finch recommended that the Plaintiff purchase Caterpillar model 3408E for installation in the Vessels.
PARTICULARS OF ADVICE AND REPRESENTATIONS
(i)The Caterpillar model 3408E was a very good, reliable and efficient engine;
(ii)The Caterpillar model 3408E was the most suitable make and model in all respects for installation in and use by the Vessels and was superior to other makes or models and should be purchased by the Plaintiff, and would be fit for the Intended Use pleaded in paragraph 12;
(Page 7)
- (iii)Of the 3 models of Caterpillar 3408 engines available, the Plaintiff should purchase model 3408E which was rated to 800 hp as that was the most suitable model for the Intended Use pleaded in paragraph 12;
(iv)The engines would reduce fuel consumption and increase fuel efficiency resulting in cost savings to the Plaintiff;
(v)The Caterpillar 3408E engines had 'get up and go' meaning they would have adequate power for the Vessel's Intended Use and would provide the Vessels with a high degree of acceleration;
(vi)Effective after-sale service and support would be provided by the Second Defendant and the Second Defendant would rectify any defect or deficiencies in the engines;
(vii)In response to the Plaintiff's expressed concern about the cost of the engines, Rick Finch advised the Plaintiff that the additional cost involved in purchasing the 3408E engines would be recovered within 3 years of operation given the fuel savings due to the superior efficiency and operating qualities of the 3408E engine;
(viii)Caterpillar engines had successfully been used without any significant problem in fishing operations similar to that of the Plaintiff including in the Western Australian Rock Lobster Fishery and in other commercial vessels elsewhere in the world and were suitable for those uses.
- (e) Held themselves out to the Plaintiff to be the providers of all engine warranty, parts, repair, maintenance and after sale support services to the purchasers of Caterpillar engines.
(Page 8)
- PARTICULARS OF HOLDING OUT
(i)Rick Finch for and on behalf of the First and Second Defendants approached the Plaintiff without solicitation, and knowing that the Plaintiff was in the process of having the Vessels designed and built, and persuaded the Plaintiff to install Caterpillar 3408E engines in the 2 Vessels.
(ii)Rick Finch for and on behalf of the First and Second Defendants handed to the Plaintiff a brochure produced by and/or on behalf of the Third Defendant covering the specifications of the Caterpillar 3408E engine, and represented verbally and by his conduct in providing the said brochure, that the First Defendant was the local agent providing all Caterpillar engine parts, repairs, maintenance, support and warranty.
- The matters pleaded in paragraphs 2(d) and 2(e) are collectively referred to as 'the Pre-Sale Representations'."
4 The first to fourth defendants object to this paragraph because they say it involves new facts and amounts to a significant departure in substance from the plaintiff's original complaint against the defendants. Furthermore, they say that the matters complained of in the amended pleading raise a cause of action which is statute-barred. They therefore say that leave to plead par 2 in the terms proposed ought be refused. Similar objections are made to a number of paragraphs of the statement of claim which are amended by the minute.
5 I must say I have some doubts as to whether or not the amended par 2 and indeed other paragraphs which are amended in the minute, actually plead "a new cause of action" (as that expression is used in Morgan v Banning (supra)). That view is reinforced when regard is had to the particulars that were provided by the plaintiff pursuant to a request made by the first and second defendants. But there is a difficulty in making a determination on that question at an interlocutory stage. What is required is a detailed consideration of the facts and the circumstances
(Page 9)
- which, it is said, give rise to the causes of action. Moreover, it requires a determination at an interlocutory stage as to when any limitation period may have expired. The High Court has warned against such determinations even in cases which on their face appear clear: see Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 per Mason CJ, Dawson, Gaudron and McHugh JJ at 533 - 534.
6 In my view, the proper approach is to allow the plaintiff to amend the statement of claim in terms of the minute but to preserve the defendants' rights with respect to any limitation defence. This can be done in one of two ways. First, the amendment can be permitted with an order that the amendments will operate only from the date upon which they are made. This was the order made by Master Bredmeyer at first instance in Morgan v Banning and such an order was approved by the Full Court in BHP Iron Ore Pty Ltd v Westraint (supra) per Steytler J at 97 - 98. The alternative approach is to leave the question of the date from which the amendments take effect to the trial Judge. This was the approach adopted by Justice Owen in the Bell decision (see par 278 - par 279). Although Steytler J was speaking for the Full Court in the BHP decision, his Honour modified his comments by referring specifically to the circumstances of that particular case. In other words, it would seem open to make either order, depending on the circumstances.
7 This seems to me to be a case where the proper order is that the question of the date from which any amendments to the statement of claim operate should be reserved to the trial Judge. That will allow the defendants to plead their limitation defence and when all the evidence is led, the pleading issues can be debated. As part of the overall determination of the dispute between the parties, the effect of the amendments and the date from which they operate can be considered.
8 There then remained a number of what might be called technical pleading issues raised by each of the defendants against the proposed statement of claim. I do not intend to deal with these objections in detail. It is sufficient if I say that I am satisfied that the statement of claim in its amended form is easily understood and provides a proper coherent narrative. The defendants are well able to plead to the amended statement of claim and none of the objections taken by the defendants are sufficient to refuse the grant of leave.
9 Subject to hearing from counsel, the orders that I would propose are as follows:
(Page 10)
- (1) The plaintiff have leave to amend the statement of claim substantially in terms of the minute of proposed amended statement of claim dated 19 May 2003.
(2) The question of the date from which the amendments to the statement of claim are to operate be reserved to the trial Judge.
(3) The plaintiff pay the defendants' costs of this application, including reserved costs, and any costs thrown away by reason of the amendment.
22
0