Darling Downs v Shaw - [2014] QDC 93

DISTRICT COURT OF QUEENSLAND

CITATION:

Darling Downs & Anor v Shaw & Ors [2014] QDC 93

PARTIES:

DARLING DOWNS AVIATION PTY LTD
(ACN 010 320 582)

(first plaintiff)

and

DRIFTER AIRCRAFT PTY LTD

(ACN 118 955 196)

(second plaintiff)

v

GLEN BARRY SHAW

(first defendant)

and

ROSS MICHAEL DAVIS

(second defendant)

and

GB SHAW & CO PTY LTD

(ACN 126 639 763)

(third defendant)

FILE NO/S:

2537/11

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2014

JUDGE:

Horneman-Wren SC DCJ

ORDER:

The amendments pleaded against the second defendant in paragraphs 23A, 24, 25, 27, 28, 30, 32, 33, 35, 37, 39, 42 and 51 of the second amended statement of claim filed on 11 February 2014 will be struck out.1.

The plaintiffs are to file and serve a further amended statement of claim deleting those parts by 9 May 2014.2.

The third amended statement of claim filed on 13 March 2014 is struck out.3.

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS - CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS – where the plaintiffs claim damages for breach of contract and conversion of chattels – where the plaintiffs amended the pleadings to include the second defendant in respect of allegations previously plead against the first defendant or include his knowledge of allegations plead against the first defendant – whether a new cause of action is being added

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS - CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS - where the plaintiffs claim damages for breach of contract and conversion of chattels – whether the plaintiffs amended the pleadings – where the relevant limitation period ended, therefore leave is required if a new cause of action is being added – whether leave should be granted to the plaintiffs to make the amendments

Uniform Civil Procedure Rules 1999 (Qld), r 171, r 371(2), r 379(2)

Borsato v Campbell [2006] QSC 191
Darney v Barry [1999] QCA 491

Wolfe v State of Queensland [2009] 1 Qd R 97

COUNSEL:

Mr B McGlade for the applicant/second defendant

Mr P Travis for the respondents/plaintiffs

SOLICITORS:

Bond & Co Lawyers for the applicant/second defendant

Aiden Lawyers for the respondents/plaintiffs

Background

The primary question for resolution is whether certain amendments contained in the plaintiffs’ second amended statement of claim filed on 11 February 2014 include a new cause of action against the second defendant, Mr Davis, and, therefore, required leave pursuant to r 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). It is common ground that the relevant limitation period has ended and, therefore, leave would be required if a new cause of action is being added. Leave was not obtained prior to the filing of the second amended statement of claim.

Mr Davis applies, purportedly pursuant to r 371(2) of the UCPR, for an…

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 Darling Downs v Shaw

Details

AGLC: Darling Downs v Shaw [2014] QDC 93
Case: [2014] QDC 93
Decision Date: 30 April 2014

CaseChat Overview and Summary

The plaintiffs, Darling Downs, filed an action against the defendants, Shaw, seeking damages for breach of contract and conversion of chattels. The plaintiffs sought to amend their pleadings to include the second defendant in respect of allegations previously pleaded against the first defendant, or to include his knowledge of the allegations against the first defendant. The defendants argued that the amendments constituted the addition of a new cause of action, which would require leave of the court due to the expiration of the relevant limitation period. The court had to determine whether the plaintiffs' amendments constituted a new cause of action and, if so, whether leave should be granted to the plaintiffs to make the amendments.

The court held that the plaintiffs' amendments to the pleadings amounted to the addition of a new cause of action against the second defendant. The court found that the amendments were not merely seeking to add the second defendant's knowledge of the allegations against the first defendant, but were instead seeking to hold the second defendant liable for the same conduct as the first defendant. The court held that the plaintiffs would need to seek leave of the court to add a new cause of action, which they had not done. The court further held that, as the relevant limitation period had expired, leave should not be granted to the plaintiffs to make the amendments.

The court struck out the amendments pleaded against the second defendant in paragraphs 23A, 24, 25, 27, 28, 30, 32, 33, 35, 37, 39, 42 and 51 of the second amended statement of claim. The plaintiffs were required to file and serve a further amended statement of claim deleting those parts by 9 May 2014. The third amended statement of claim filed on 13 March 2014 was also struck out.

Orders

Orders of the court

The amendments pleaded against the second defendant in paragraphs 23A, 24, 25, 27, 28, 30, 32, 33, 35, 37, 39, 42 and 51 of the second amended statement of claim filed on 11 February 2014 will be struck out.1.

The plaintiffs are to file and serve a further amended statement of claim deleting those parts by 9 May 2014.2.

The third amended statement of claim filed on 13 March 2014 is struck out.3.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Darling Downs & Anor v Shaw & Ors [2014] QDC 93
PARTIES:	DARLING DOWNS AVIATION PTY LTD (ACN 010 320 582) (first plaintiff) and DRIFTER AIRCRAFT PTY LTD (ACN 118 955 196) (second plaintiff) v GLEN BARRY SHAW (first defendant) and ROSS MICHAEL DAVIS (second defendant) and GB SHAW & CO PTY LTD (ACN 126 639 763) (third defendant)
FILE NO/S:	2537/11
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	30 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	27 March 2014
JUDGE:	Horneman-Wren SC DCJ
ORDER:	The amendments pleaded against the second defendant in paragraphs 23A, 24, 25, 27, 28, 30, 32, 33, 35, 37, 39, 42 and 51 of the second amended statement of claim filed on 11 February 2014 will be struck out.1. The plaintiffs are to file and serve a further amended statement of claim deleting those parts by 9 May 2014.2. The third amended statement of claim filed on 13 March 2014 is struck out.3.
CATCHWORDS:	PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS - CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS – where the plaintiffs claim damages for breach of contract and conversion of chattels – where the plaintiffs amended the pleadings to include the second defendant in respect of allegations previously plead against the first defendant or include his knowledge of allegations plead against the first defendant – whether a new cause of action is being added PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS - CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS - where the plaintiffs claim damages for breach of contract and conversion of chattels – whether the plaintiffs amended the pleadings – where the relevant limitation period ended, therefore leave is required if a new cause of action is being added – whether leave should be granted to the plaintiffs to make the amendments Uniform Civil Procedure Rules 1999 (Qld), r 171, r 371(2), r 379(2) Borsato v Campbell [2006] QSC 191 Darney v Barry [1999] QCA 491 Wolfe v State of Queensland [2009] 1 Qd R 97
COUNSEL:	Mr B McGlade for the applicant/second defendant Mr P Travis for the respondents/plaintiffs
SOLICITORS:	Bond & Co Lawyers for the applicant/second defendant Aiden Lawyers for the respondents/plaintiffs