Bythorne Contracting Pty Ltd t/as Range Equipment Sales v TMM Engineering Pty Ltd t/as TMM Engineering
[2015] WADC 48
•12 MAY 2015
BYTHORNE CONTRACTING PTY LTD t/as RANGE EQUIPMENT SALES -v- TMM ENGINEERING PTY LTD t/as TMM ENGINEERING [2015] WADC 48
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 48 | |
| Case No: | CIV:2454/2013 | 11 MARCH 2015 | |
| Coram: | PRINCIPAL REGISTRAR MELVILLE | 12/05/15 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | BYTHORNE CONTRACTING PTY LTD t/as RANGE EQUIPMENT SALES TMM ENGINEERING PTY LTD t/as TMM ENGINEERING |
Catchwords: | Application to join a second defendant Whether necessary to do so in order to ensure all matters in dispute effectually and completely determined |
Legislation: | Rules of the Supreme Court 1971O 18 r 6 |
Case References: | Stockland South Beach Pty Ltd v Judith Lorraine Hare as Trustee for The Hare Property Trust [2015] WADC 14 Wurth Australia Pty Ltd v Burgess [2012] WASC 504 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
TMM ENGINEERING PTY LTD t/as TMM ENGINEERING
Defendant
Catchwords:
Application to join a second defendant - Whether necessary to do so in order to ensure all matters in dispute effectually and completely determined
Legislation:
Rules of the Supreme Court 1971O 18 r 6
Result:
Application dismissed
Representation:
Counsel:
Plaintiff : Mr B G Grubb
Defendant : No appearance
Second Defendant (Proposed) : Mr L Swanson
Solicitors:
Plaintiff : Metaxas & Hager
Defendant : Not applicable
Second Defendant (Proposed) : Hotchkin Hanly
Case(s) referred to in judgment(s):
Stockland South Beach Pty Ltd v Judith Lorraine Hare as Trustee for The Hare Property Trust [2015] WADC 14
Wurth Australia Pty Ltd v Burgess [2012] WASC 504
1 PRINCIPAL REGISTRAR MELVILLE: The plaintiff seeks an order that Brian Steven De Mol be joined as second defendant to the action. The action was commenced by writ against TMM Engineering. The statement of claim, to paraphrase it, alleges that TMM Engineering was to perform work on the plaintiff's truck to a required standard within time so that the truck could be delivered for hire to a mine site.
2 It is alleged that TMM Engineering breached the contract by failing to perform the work with reasonable skill, care and diligence, breached the provisions of the Competition and Consumer Act 2010 found in sch 2 (the Australian Consumer Law) s 54, s 55, s 60 and/or s 61 and alternatively, breached an alleged duty of care owed by TMM Engineering to the plaintiff in this regard.
3 The essence of s 54, s 55, s 60 and s 61 of the Australian Consumer Lawis toimpose statutory obligations and guarantees as to acceptable quality, fitness for a disclosed purpose and fitness for a particular purpose, and the use of due care and skill.
4 By letter dated 12 September 2014 the solicitors for TMM Engineering advised the court that TMM Engineering had gone into liquidation. By summons dated 24 September 2014, the plaintiff sought to join Brian Steven De Mol, the second defendant to the action and to amend the statement of claim.
5 The proposed amended statement of claim seeks to allege that Mr De Mol was at all material times the sole director, shareholder and general manager for TMM Engineering, that he made representations to Mr Goyder (the agent of the plaintiff), that he was the controlling mind of TMM Engineering and was liable for any contravention by TMM Engineering of the abovementioned sections, this liability arising pursuant to the provisions of s 236, s 224(1)(e) and/or s 237 of the Australian Consumer Law.
6 To paraphrase those last mentioned sections, s 224(1)(e) empowers the court to order a person who has been in any way directly or indirectly, knowingly concerned in or party to the contravention with pt 3.2 of the Australian Consumer Law (in which s 55 - s 61 fall), to pay a pecuniary penalty to the Commonwealth, State or Territory as the case may be. Section 236 entitles a person who suffers loss or damage because of the conduct of another person, where that conduct contravened a provision of ch 2 or 3 (in which s 54 - s 61 fall) to claim damages against that other person or any person involved in the contravention.
7 Section 237 empowers a court, on the application of the person who has suffered loss or damage because of the conduct of another person that contravenes ch 3 of the Australian Consumer Law to make an order that compensates the injured person in whole or in part for the loss or damage.
8 By par 10.2 of the proposed amended statement of claim the plaintiff pleads its case this way:
10.2 The second defendant is liable for any contravention by the first defendant, pursuant to sections: 2 (definition of 'involved'), 236, 224(1)(e) and/or 237 of the ACL, as a director and general manager and controlling mind of the first defendant and by: aiding; abetting; procuring and/or by otherwise being, at all relevant times, knowingly concerned and/or involved in respect of the actions and conduct of the first defendant, in any way either directly or indirectly, in respect of the delivery of the goods and services by the first defendant as constituted by the Works, Contract and Quote, and thereafter by reason of the subsequent alleged Breaches and breach of the statutory guarantees pleaded in paragraph 10.1 above.
Particulars of Second Defendant's Knowledge and Involvement in Contravention by First Defendant
(a) At all relevant times, the second defendant was the sole director, shareholder, general manager and the controlling mind of the first defendant when the:
(i) guarantee of acceptable quality of the goods supplied in respect of the Works and Contract was made pursuant to Schedule 2, section 54 of the ACL;
(ii) guarantee of fitness for purpose of the goods supplied with respect to the Works and Contract was made, pursuant to Schedule 2, section 55 of the ACL;
(iii) guarantee as to due care and skill in the services rendered with respect to the Works and Contract was made, pursuant to Schedule 2, section 60 of the ACL;
(iv) guarantee as to fitness for a particular purpose with respect to the purpose for which the services rendered under the Works and Contract was made, pursuant to Schedule 2, section 61 of the ACL.
(b) The second defendant was named as the 'contact' for the Works in the Quote (prepared by the second defendant) and the Contract and the plaintiff otherwise repeats paragraph 5 above.
(c) When contacted by the plaintiff the second defendant agreed, on behalf of the first defendant, to carry out the Works on the Truck pursuant to the Contract – and the plaintiff otherwise repeats paragraph 5.2 above.
(d) The second defendant either completed, or oversaw the completion, of the initial Works on the Truck, and the works to rectify the Breaches, on behalf of and otherwise by the first defendant, as pleaded in paragraph 12 below.
The law
9 The joinder of further defendants to an action that has already been commenced is governed by the Rules of the Supreme Court 1971 (WA) O 18 r 6(2)(b). There it is provided that a court may
order that any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party.
10 The meaning of these words has recently been considered by Braddock J in Stockland South Beach Pty Ltd v Judith Lorraine Hare as Trustee for The Hare Property Trust [2015] WADC 14. After quoting the decision of Corboy J in Wurth Australia Pty Ltd v Burgess [2012] WASC 504 [55] – [57], Braddock J said [31]:
To determine whether a matter is 'necessary' so as to enable it to be joined in any particular case requires … the consideration of both the factual background and the legal claim. …
11 Her Honour went on to observe that the test of necessity is based upon a consideration of the rights and liabilities of the proposed defendant rather than the convenience of the plaintiff or the available remedies.
12 The question is whether orders as sought in the claim brought against TMM Engineering, would affect the rights and obligations of Mr De Mol. In my view, an award of damages against TMM Engineering does not affect the rights and liabilities of a third party in the form of Mr De Mol. The orders sought against TMM Engineering do not impinge upon the rights of Mr De Mol directly. Nor is there any other order that could be made which would affect him.
13 Whilst I have little difficulty in coming to the view it would be convenient to join Mr De Mol as the second defendant, in my view it is not necessary in order to ensure that all matters in dispute between the plaintiff and TMM Engineering are effectually and completely determined.
14 For these reasons I will dismiss the application that Brian Steven De Mol be joined as a second defendant to the action and refuse leave to the plaintiff to amend the statement of claim and writ of summons.
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