Devine Constructions Pty Ltd v Stowe Australia Pty Ltd (No 2) - [2022] QSC 272

SUPREME COURT OF QUEENSLAND

CITATION:

Devine Constructions Pty Ltd v Stowe Australia Pty Ltd & Ors (No 2) [2022] QSC 272

PARTIES:

DEVINE CONSTRUCTIONS PTY LTD
ACN 114 040 845

(Applicant)

v
STOWE AUSTRALIA PTY LTD ACN 002 556 603

(First Respondent)
PROFIRE SYSTEMS PTY LTD ACN 081 006 724
(FORMERLY KNOWN AS PROFIRE (QLD) PTY LTD) AS TRUSTEE FOR PROFIRE (QLD) UNIT TRUST ABN 91 905 798 318
(Second Respondent)
BEYFIELD PTY LTD T/A EAST COAST MECHANICAL SERVICES (IN LIQUIDATION)
ACN 055 838 438
(Third Respondent)
PHILIP CHUN & ASSOCIATES PTY LTD
ACN 007 401 649
(Fourth Respondent)
NOFIRE PTY LTD T/A FYREGUARD ACN 114 404 278

(Fifth Respondent)

FILE NO/S:

3559 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2022

JUDGE:

Crowley J

ORDER:

1. I decline to make the orders sought by the First Respondent.

2. Order 2 of my orders dated 23 November 2022 be varied as follows: Pursuant to rule 7 of the Rules, the time for compliance with Order 2(a) of the orders of Justice Applegarth dated 9 May 2022 be extended to 28 September 2022.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – TIME FOR AMENDMENT – where the plaintiff was granted leave to file a further amended statement of claim – where the further amended statement of claim raised new causes of action – where the first defendant would be deprived of limitation defences if the amendments are taken to have started when the original proceeding started – whether the Court should order that the amendments started only when the Court granted leave to file the further amended statement of claim – whether the new causes of action arise out of the same or substantially the same facts as a cause of action for which relief has already been claimed – whether the first defendant would suffer prejudice if the Court refuses to make the orders sought

Limitation of Actions Act 1974 (Qld), s 10, s 10(1)(a)

Uniform Civil Procedure Rules 1999 (Qld), r 375(1), r 376, r 376(4)

Allonnor Pty Ltd v Wayne Doran[1998] QCA 372, cited
Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, cited
Devine Constructions Pty Ltd v Stowe Australia Pty Ltd & Ors [2022] QSC 51, cited
Draney v Barry [2002] 1 Qd R 145; [1999] QCA 491, applied
McDonald Keen Group Pty Ltd (in liq) v Queensland [2019] QSC 94, cited
Menegazzo v Pricewaterhousecoopers (A Firm) [2016] QSC 94, applied
Mokrzecki v Popham [2013] QSC 123, cited
Paul v Westpac Banking Corporation Ltd [2017] 2 Qd R 96; [2016] QCA 252, cited
Thomas v Queensland[2001] QCA 336, cited

Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55, cited

COUNSEL:

D O’Sullivan KC, with F…

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.

Keep reading for free

Create a free CaseChat account to read Devine Constructions Pty Ltd v Stowe Australia Pty Ltd (No 2... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] QSC 272
Decision Date: 16 December 2022

CaseChat Overview and Summary

The case of Devine Constructions Pty Ltd v Stowe Australia Pty Ltd (No 2) involved a dispute between Devine Constructions and Stowe Australia, concerning the admissibility of a further amended statement of claim filed by the plaintiff. The legal issues that came before the court were whether the court should order that the amendments to the statement of claim should start only when the court granted leave to file the further amended statement of claim and whether the new causes of action arose out of the same or substantially the same facts as a cause of action for which relief had already been claimed. Additionally, the court had to consider whether the first defendant would suffer prejudice if the court refused to make the orders sought.

The court held that the possibility of the first defendant being deprived of limitation defences was not sufficient to persuade the court to make the order it sought. The court referred to the decision in Menegazzo v Pricewaterhousecoopers (A Firm) & Ors, where it was noted that if amendments which include a new cause of action and which satisfy the requirements of r 376(4)(b) are appropriate, they do not cease to be appropriate because they would overcome what otherwise would be a relevant period of limitation. The court concluded that the First Respondent's request for orders should be declined.

In addition to declining the orders sought by the First Respondent, the court also noted that there was an error in the orders made on 23 November 2022. The court varied order 2 of its orders dated 23 November 2022 to extend the time for compliance with Order 2(a) of the orders of Justice Applegarth dated 9 May 2022 to 28 September 2022.

In summary, the court declined to make the orders sought by the First Respondent and varied the orders made on 23 November 2022 to correct an error.

Orders

Orders of the court

1. I decline to make the orders sought by the First Respondent.

2. Order 2 of my orders dated 23 November 2022 be varied as follows: Pursuant to rule 7 of the Rules, the time for compliance with Order 2(a) of the orders of Justice Applegarth dated 9 May 2022 be extended to 28 September 2022.

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

Further, the possibility that the First Respondent may be deprived of limitation defences is not sufficient to persuade me I should make the order it seeks. As Applegarth J noted in Menegazzo v Pricewaterhousecoopers (A Firm) & Ors, if amendments which include a new cause of action and which satisfy the requirements of r 376(4)(b) are appropriate, they do not cease to be appropriate because they would overcome what otherwise would be a relevant period of limitation.[32][32][2016] QSC 94, [77].Conclusion For these reasons, I decline to make the orders sought by the First Respondent. However, noting that order 2 of the orders I made by consent on 23 November 2022 incorrectly refers to an order Applegarth J made on 9 May 2022 as being made on 9 April 2022, I will vary order 2 of my order made on 23 November 2022 to: Pursuant to rule 7 of the Rules, the time for compliance with Order 2(a) of the orders of Justice Applegarth dated 9 May 2022 be extended to 28 September 2022.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Devine Constructions Pty Ltd v Stowe Australia Pty Ltd & Ors (No 2) [2022] QSC 272
PARTIES:	DEVINE CONSTRUCTIONS PTY LTD ACN 114 040 845 (Applicant) v STOWE AUSTRALIA PTY LTD ACN 002 556 603 (First Respondent) PROFIRE SYSTEMS PTY LTD ACN 081 006 724 (FORMERLY KNOWN AS PROFIRE (QLD) PTY LTD) AS TRUSTEE FOR PROFIRE (QLD) UNIT TRUST ABN 91 905 798 318 (Second Respondent) BEYFIELD PTY LTD T/A EAST COAST MECHANICAL SERVICES (IN LIQUIDATION) ACN 055 838 438 (Third Respondent) PHILIP CHUN & ASSOCIATES PTY LTD ACN 007 401 649 (Fourth Respondent) NOFIRE PTY LTD T/A FYREGUARD ACN 114 404 278 (Fifth Respondent)
FILE NO/S:	3559 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2022
JUDGE:	Crowley J
ORDER:	1. I decline to make the orders sought by the First Respondent. 2. Order 2 of my orders dated 23 November 2022 be varied as follows: Pursuant to rule 7 of the Rules, the time for compliance with Order 2(a) of the orders of Justice Applegarth dated 9 May 2022 be extended to 28 September 2022.