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Clutha v Millar (No.2)

Clutha v Millar (No.2)

Case [2002] NSWSC 523 12 June 2002

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CITATION: Clutha v Millar (No.2) [2002] NSWSC 523

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4834/00

HEARING DATE(S): 4 June 2002

JUDGMENT DATE: 12 June 2002

PARTIES :

Clutha Ltd (in liq) (P)
Frederick William Millar (D1)
John McClelland Armstrong (D2)
Denis John Frew (D3)
John Knox Doherty (D4)
Charles Ronald Longworth (D5)
Donald George Thomas (D6)
Ernest Neil Scott (D7)
Hiroshi Yoshikawa (D8)
Hirosuke Yamamoto (D9)
Nichimen Corporation (D10)
Nichimen Australia Ltd (D11)

JUDGMENT OF: Austin J

COUNSEL : Mr J C Kelly SC with G Seib (P)
Mr G Lucarelli (D1 to D7)
Mr J Marshall (D10 & D11)

SOLICITORS: Piper Alderman (P)
Minter Ellison (D1 to D7)
Clayton Utz (D10 & D11)

CATCHWORDS: PRACTICE AND PROCEDURE - application to amend statement of claim - whether Court has jurisdiction to grant leave to amend under Supreme Court Rules where originating process was statute-barred

LEGISLATION CITED: Limitations Act 1969 (NSW) s 63
Supreme Court Rules Pt 20

CASES CITED: Baldry v Jackson [1976] 2 NSWLR 415
Chapple v Laming [1981] 2 NSWLR 765
Clutha Ltd (in liq) v Millar [2002] NSWSC 362
Fernance v Nominal Defendant (1989) 17 NSWLR 710
Lloyd Steel (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212
McGee v Yeomans [1977) 1 NSWLR 273
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
Weldon v Neal (887) 19 QBD 394

DECISION: Proceeding to be dismissed against first to seventh defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

WEDNESDAY 12 JUNE 2002

4834/00 CLUTHA LTD (IN LIQ) V FREDERICK WILLIAM MILLAR & ORS (NO.2)

JUDGMENT

1 HIS HONOUR: On 8 and 15 April 2002, various applications came before me in the Corporations List in proceedings No 4834 of 2000 and 1428 of 2001, involving substantially the same parties. In proceeding No 4834 of 2000, Clutha Ltd (in liquidation) seeks to recover damages for negligence from its directors and (in the case of its Japanese director and alternate director) their employers. In proceeding No 1428 of 2001 Clutha and its liquidator seek various orders, including compensation orders, from the same defendants for breach of the statutory duties of care and diligence and for insolvent trading (and, in the case of the tenth and eleventh defendants, involvement in breaches by others). The allegations of facts on which the plaintiffs seek to rely to found their causes of action in the two proceedings are the same.

2 The applications included an application by the first to seventh defendants for summary dismissal of proceeding No 4834 of 2000 on the ground that the claim was statute-barred, and an application by the plaintiff in that proceeding to amend its statement of claim in a manner designed to address the limitation point. The pressure of the Corporations List made it impossible to hear at once all of the applications that were before the Court. Therefore the parties invited me to decide only the question whether the cause of action in the 2000 proceeding was…

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.

Continue reading Clutha v Millar (No.2)

Details

AGLC: Clutha v Millar (No.2) [2002] NSWSC 523
Case: [2002] NSWSC 523
Decision Date: 12 June 2002

CaseChat Overview and Summary

The matter before the Court involved an application by the respondent, Clutha, seeking leave to amend their statement of claim to include a claim for damages against the applicant, Millar. The original claim was statute-barred, and the application to amend was made under the Supreme Court Rules. The primary issue before the Court was whether it had jurisdiction to grant leave to amend the statement of claim under the Rules, given that the originating process was statute-barred.

The Court considered the relevant statutory provisions and case law to determine whether it had jurisdiction to grant leave to amend the statement of claim. The Court noted that the Rules provided for the amendment of pleadings, but the question was whether this applied in circumstances where the originating process was statute-barred. The Court held that the Rules did not explicitly exclude the jurisdiction to grant leave to amend in such circumstances. The Court further noted that the Rules were to be construed purposively, and that the purpose of the Rules was to facilitate the just resolution of disputes. The Court held that it had jurisdiction to grant leave to amend the statement of claim, subject to the satisfaction of certain conditions.

The Court held that the application to amend the statement of claim could be granted if the respondent could demonstrate that there was a real prospect of success on the amended claim, and that the amendment would not cause undue delay or prejudice to the applicant. The Court held that the respondent had not demonstrated that there was a real prospect of success on the amended claim, and that the amendment would cause undue delay and prejudice to the applicant. Accordingly, the Court refused the application to amend the statement of claim.

The Court declined to grant the respondent leave to amend the statement of claim. The Court held that the Rules did not exclude the jurisdiction to grant leave to amend in circumstances where the originating process was statute-barred, but that the respondent had not satisfied the conditions for leave to amend. The Court emphasised that the Rules were to be construed purposively, and that the purpose of the Rules was to facilitate the just resolution of disputes. However, the Court held that the respondent had not demonstrated that there was a real prospect of success on the amended claim, and that the amendment would cause undue delay and prejudice to the applicant. The Court therefore refused the application to amend the statement of claim.

Orders