COTE -v- DEVINE [No 2] [2013] WASC 313

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 313
Published:	20/08/2013
Case No:	COR:25/2013	Heard:	7 AUGUST 2013
Coram:	MASTER SANDERSON	Delivered:	7/08/13
No of pages:	13	Judgment Part:	1 of 1
Result:	Amendment allowed
Category:	A
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Parties:	ROBERT COTE MARIE CELINE SOLANGE CHOUINARD GEORGINA MARGARET MOORE TRENT DEVINE SULE ARNAUTOVIC RODERICK MACKAY SUTHERLAND
Catchwords:	Corporations law Amendment of originating process Whether amendment possible where cause of action arose after issue of originating process Application of Rules of the Supreme Court 1971 (WA) to amendment to originating process issued under Corporations Act 2001 (Cth)
Legislation:	Nil
Case References:	Cote v Devine [2013] WASC 79 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Wigan v Edwards (1973) 1 ALR 497

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : COTE -v- DEVINE [No 2] [2013] WASC 313 CORAM : MASTER SANDERSON HEARD : 7 AUGUST 2013 DELIVERED : 7 AUGUST 2013 PUBLISHED : 20 AUGUST 2013 FILE NO/S : COR 25 of 2013 MATTER : Aurora Balanced Living Properties Pty Ltd (Administrators Appointed)

Aurora Balanced Living Pty Ltd (Administrators Appointed)

BETWEEN : ROBERT COTE

MARIE CELINE SOLANGE CHOUINARD

GEORGINA MARGARET MOORE

Plaintiffs

AND

TRENT DEVINE

SULE ARNAUTOVIC

RODERICK MACKAY SUTHERLAND

Defendants

Catchwords:

Corporations law - Amendment of originating process - Whether amendment possible where cause of action arose after issue of originating process - Application of Rules of the Supreme Court 1971 (WA) to amendment to originating process issued under Corporations Act 2001 (Cth)

Legislation:

Nil

Result:

Amendment allowed

Category: A

Representation:

Counsel:

Plaintiffs : Mr R M Garratt QC

Defendants : Mr D K J Skender

Solicitors:

Plaintiffs : Culshaw Miller

Defendants : Sparke Helmore

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

Cote v Devine [2013] WASC 79
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Wigan v Edwards (1973) 1 ALR 497

1 MASTER SANDERSON: This was the return of two interlocutory process. The first in time was the plaintiffs' application for leave to amend the originating process in terms of a minute of further amended originating process filed 24 June 2013. The second interlocutory process was an application by the defendants seeking to strike out the plaintiffs' action in its entirety. At the conclusion of the hearing I gave leave to the plaintiffs to amend the originating process substantially in accordance with the further amended minute. I dismissed the defendants' application. I indicated I would give reasons for my decision at a later date. These are those reasons.

2 The originating process sought the follow orders:

1 An Order removing the Respondents as administrators of Aurora Balanced Living Properties Pty Ltd (Administrators Appointed) (ACN 112 765 563) ('ABLP').

2 An Order removing the Respondents as administrators of Aurora Balanced Living Pty Ltd (Administrators Appointed) (ACN 110 871 031) ('ABL').

3 An Order appointing Gary John Anderson, of Level 1, 12 Prowse Street, West Perth, Western…

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 Cote v Devine [No 2]

Details

AGLC: COTE -v- DEVINE [No 2] [2013] WASC 313
Case: [2013] WASC 313
Decision Date: 20 AUGUST 2013

CaseChat Overview and Summary

The matter of Cote v Devine [No 2] involved the applicants, Cote, seeking to amend their originating process in the Supreme Court of Western Australia. The respondents, Devine, opposed the amendment. The dispute centred on the possibility of amending the originating process to include a new cause of action that arose after the original process was issued. This amendment sought to incorporate allegations stemming from actions taken after the initial claim was filed.

The central legal issue before the court was whether an amendment to an originating process, issued under the Corporations Act 2001 (Cth), was permissible when the cause of action arose after the process was initially issued. Additionally, the court had to consider the applicability of the Rules of the Supreme Court 1971 (WA) to such an amendment. The applicants argued that the amendment was necessary to address new developments in the case, while the respondents contended that the amendment should not be allowed as it fundamentally altered the nature of the proceedings.

The court found that the amendment could be allowed under the relevant rules. It held that the Rules of the Supreme Court 1971 (WA) did apply to amendments of an originating process issued under the Corporations Act 2001 (Cth). The court reasoned that the amendment was necessary to address a new cause of action that arose post the initial filing and did not fundamentally alter the nature of the proceedings. Consequently, the court granted the applicants' application to amend the originating process.

Orders

Orders of the court

Amendment allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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