Chivers v Perron Investments Pty Ltd - [2003] WADC 243

CHIVERS -v- PERRON INVESTMENTS PTY LTD & ORS [2003] WADC 243

Last Update: 11/11/2003

CHIVERS -v- PERRON INVESTMENTS PTY LTD & ORS [2003] WADC 243
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 243
Case No:	CIV:1849/2001	Heard:	8 OCTOBER 2003
Coram:	WILLIAMS DCJ	Delivered:	07/11/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	7	Judgment Part:	1 of 1
Result:	Appeal dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	JACK CHIVERS PERRON INVESTMENTS PTY LTD JONES LANG LASALLE (WA) PTY LIMITED (ACN 008 767 762) P & O BERKELEY CHALLENGE PTY LIMITED (ACN 000464 755)
Catchwords:	Procedure Supreme Court procedure Rules of the Supreme Court, O 20, r 19 Appeal by third defendant/appellant against Registrar's refusal to strike out plaintiff's minute of proposed amended statement of claim
Legislation:	Nil
Case References:	Dalgety Australian Limited and Anor v De Vahl Rubin and Ors, FCt SCt of WA; Library No 5484; 24 August 1984 General Steel Industries Inc v Commissioner for Railways of NSW & Ors (1964) 112 CLR 125 Hospital Contribution Fund of Australia v Hunt (1983) 44 ALR 365 Kimberley Downs Pty Ltd and Ors v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986 Niven & Anor v Grant & Ors (1903) 28 VLR 639 Packard & Ors v Transport Trading & Agency Co Ltd and Weir (1912) 14 WALR 191 Phillips v Phillips & Ors (1878) 4 QBD 127 Agar v Hyde [2000] 201 CLR 552 Bruce v Odhams Press Ltd [1936] 1 KB 697 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Crimmins v Stevedoring Industry Finance Committee (1999) 2000 CLR 1 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Donoghue v Stevenson (Snail in the Bottlecase) [1932] AC 562 Dorset Yacht Co Ltd v Home Office [1970] AC 1004 Gordon v Tamworth Jockey Club Inc [2003] NSWCA 82 Graham Barclay Oysters Pty Ltd v Ryan [2002] 194 ALR 337 Hargrave v Goldman (1963) 110 CLR 40 Jaensch v Coffey (1984) 155 CLR 549 Kenny v Scholl (1905) 7 WALR 197 Kondis v State Transport Authority (1984) 154 CLR 672 Lonrho PLC v Fayed & Ors [1992] 1 AC 448 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] 205 CLR 254 Perl Exporters v Camden London Borough Council [1984] 1 QB 342 Rubenstein v Truth & Sportsman & Sportsman [1960] VR 473 Smith v Leurs (1945) 70 CLR 256 Smith v Roman Catholic Archbishop of Perth [2001] WASC 86 Williamson v London & Northwest Railway Co (1879) 12 Ch D 787

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : CHIVERS -v- PERRON INVESTMENTS PTY LTD & ORS [2003] WADC 243 CORAM : WILLIAMS DCJ HEARD : 8 OCTOBER 2003 DELIVERED : 7 NOVEMBER 2003 FILE NO/S : CIV 1849 of 2001 BETWEEN : JACK CHIVERS

Plaintiff/Respondent

AND

PERRON INVESTMENTS PTY LTD

First Defendant

JONES LANG LASALLE (WA) PTY LIMITED (ACN 008 767 762)

Second Defendant

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: [2003] WADC 243
Decision Date: 7 NOVEMBER 2003

CaseChat Overview and Summary

Chivers v Perron Investments Pty Ltd involved an appeal by the third defendant against a Registrar's decision to refuse the striking out of the plaintiff's minute of proposed amended statement of claim. The plaintiff sought to amend the statement of claim, and the third defendant sought to have this motion dismissed. The court had to determine whether the Registrar was correct in declining to strike out the plaintiff's proposed amendment. The legal issues included whether the plaintiff's proposed amendment was permissible under the Rules of the Supreme Court, specifically Order 20, rule 19. The court had to consider whether the amendment would cause an unjust delay or prejudice to the third defendant, and if it had any merit.

The court examined the procedural rules and found that the plaintiff's proposed amendment did not unduly prejudice or delay the third defendant. The court concluded that the proposed amendment had a degree of merit, as it sought to clarify the plaintiff's case and did not introduce new causes of action. The court held that the Registrar's decision to refuse the striking out of the plaintiff's minute of proposed amended statement of claim was correct. As such, the appeal was dismissed, and the plaintiff was allowed to proceed with the amended statement of claim.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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