DIMMAH Investments Pty Ltd v Chooka's International Pty Ltd
[2003] WASC 211
DIMMAH INVESTMENTS PTY LTD -v- CHOOKA'S INTERNATIONAL PTY LTD & ORS [2003] WASC 211
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 211 | |
| Case No: | CIV:1266/2001 | 27 OCTOBER 2003 | |
| Coram: | EM HEENAN J | 27/10/03 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Summons to strike out contribution proceedings dismissed | ||
| B | |||
| PDF Version |
| Parties: | DIMMAH INVESTMENTS PTY LTD CHOOKA'S INTERNATIONAL PTY LTD KEVIN JOHN PAYNE JEFFREY LEON SHER PHILLIP PULLINGER NEIL KEVIN STEWART ERIC ROSS-ADJIE ANTHONY BASILE JENNIFER AMANDA HAWKINS |
Catchwords: | Practice and procedure Consent to order for discontinuance No order made Party remaining defendant Contribution proceedings between defendants Contribution proceedings converted to third party proceedings Order for discontinuance Need for third party directions generally |
Legislation: | Rules of the Supreme Court, O 43, r 16 |
Case References: | Nil Baxter v Obacelo Pty Ltd [2001] HCA 66 Borthwick v Elderslie Steamship Co Ltd (No 2) [1905] 2 KB 516 BP Petroleum Development Ltd v Esso Petroleum Co Ltd [1987] SLT 345 CSR Limited v Page & Ors [2002] NSWCA 365 Dietz v Lennig Chemicals Ltd [1969] 1 AC 170 Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Frank Jasper Pty Ltd & Anor v Deloitte Touche Tohmatsu (A Firm) & Ors [2003] WASC 26 Harper v Gray & Walker (A Firm) & Ors [1985] All ER 507 Hatton v Harris [1892] AC 547 James Hardie & Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78 Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573 Oceanic Crest Shipping Co v Pilbarra Harbour Services Pty Ltd (1986) 160 CLR 626 Sparks v Van Den Ham & Anor [2003] WASCA 143 Wintle v Stevedoring Industry Finance Committee & Ors [2002] VSC 369 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CHOOKA'S INTERNATIONAL PTY LTD
First Defendant
KEVIN JOHN PAYNE
JEFFREY LEON SHER
Second Defendants
PHILLIP PULLINGER
NEIL KEVIN STEWART
ERIC ROSS-ADJIE
ANTHONY BASILE
JENNIFER AMANDA HAWKINS
Third Defendants
CHOOKA'S INTERNATIONAL PTY LTD
First Third Party
KEVIN JOHN PAYNE
Second Third Party
(Page 2)
Catchwords:
Practice and procedure - Consent to order for discontinuance - No order made - Party remaining defendant - Contribution proceedings between defendants - Contribution proceedings converted to third party proceedings - Order for discontinuance - Need for third party directions generally
Legislation:
Rules of the Supreme Court, O 43, r 16
Result:
Summons to strike out contribution proceedings dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr M L Bennett
First Defendant : Mr J R Tydde
Second Defendants : Mr J R Tydde
Third Defendants : Ms D G Craig
First Third Party : Mr J R Tydde
Second Third Party : Mr J R Tydde
Solicitors:
Plaintiff : Bennett & Co
First Defendant : Tydde & Co
Second Defendants : Tydde & Co
Third Defendants : Mullins Handcock
First Third Party : Tydde & Co
Second Third Party : Tydde & Co
(Page 3)
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Baxter v Obacelo Pty Ltd [2001] HCA 66
Borthwick v Elderslie Steamship Co Ltd (No 2) [1905] 2 KB 516
BP Petroleum Development Ltd v Esso Petroleum Co Ltd [1987] SLT 345
CSR Limited v Page & Ors [2002] NSWCA 365
Dietz v Lennig Chemicals Ltd [1969] 1 AC 170
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Frank Jasper Pty Ltd & Anor v Deloitte Touche Tohmatsu (A Firm) & Ors [2003] WASC 26
Harper v Gray & Walker (A Firm) & Ors [1985] All ER 507
Hatton v Harris [1892] AC 547
James Hardie & Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573
Oceanic Crest Shipping Co v Pilbarra Harbour Services Pty Ltd (1986) 160 CLR 626
Sparks v Van Den Ham & Anor [2003] WASCA 143
Wintle v Stevedoring Industry Finance Committee & Ors [2002] VSC 369
(Page 4)
1 EM HEENAN J: There is presently before the Court a chamber summons taken out by the plaintiff for orders seeking to rectify the Court record in relation to the status of Mr Sher, who on the face of the record now stands as the second-named second defendant. The plaintiff also seeks an order striking out a notice of contribution filed against Mr Sher. As this relatively straightforward matter has now occupied almost an hour, it is necessary to say something about these proceedings.
2 As originally formulated the plaintiff brought an action for damages under the provisions of the Trade Practices Act (Clth) against the first and second defendants for alleged misrepresentation before, or non-compliance with obligations arising out of, the acquisition of rights under a franchise agreement. The plaintiff joined with that action a concurrent claim against the third defendant, the firm of solicitors advising it at the time of the acquisition and in relation to that transaction, alleging negligence or breach of contract by the solicitors in failing to advise the plaintiffs, adequately or at all, about the alleged inadequacies in the disclosure by the franchisor in the course of the negotiations.
3 Defences were progressively filed by the first defendant, the first-named second defendant and then by the third defendants. A long interlocutory process followed leading to case management before a Registrar of the Court. In the course of the case management procedures there were agreements reached between the plaintiff and the first and second defendants leading to further agreement that the plaintiff would discontinue the action against the first defendant and both second defendants.
4 By that stage, leave to discontinue, at least against the first defendant and the first-named second defendant, was essential although it is perhaps arguable whether leave to discontinue against the second-named second defendant was needed in view of his failure to file a defence. Nevertheless, the plaintiff and the parties acted on the basis that leave to discontinue, or a formal order discontinuing, the proceedings was required. Rather than take out an application for leave to discontinue or for an order for discontinuance, the parties availed of the summary procedure for consent orders to be made by the Court by the filing of a consent minute under O 43, r 16.
5 That was done in July or August of 2000 and minutes of proposed consent orders relating to discontinuance against the first defendant and
(Page 5)
- the first-named second defendant were filed and acted upon. For some reason, which has not been explained and which does not matter, it was decided to file a separate minute of consent for an order for discontinuance against the second-named second defendant, Mr Sher. Such a document dated in August of 2001 and bearing the written consent of the solicitors for the plaintiff and for the second-named second defendant was handed up at, or filed following, a case management conference.
6 One would have expected that, in accordance with O 43, r 16, a formal order giving effect to that consent would have been made by the Court either by endorsement or otherwise soon afterwards and that any party interested would then have extracted the order discontinuing the proceedings against the second-named second defendant. For reasons which do not fully emerge but appear to have their cause in some confusion or misfiling in the Registry of this Court, a most regrettable and unfortunate situation, the minute of proposed consent order so filed did not produce a formal order, whether by fiat from the Registrar or in any other form. No order for discontinuance against the second-named second defendant was ever extracted.
7 Some years went by and, in the meantime, proposals were foreshadowed by the current third defendants of an intention to issue third party proceedings against the former first defendant, Chooka's International Pty Ltd and Mr Kevin John Payne and to issue a notice of contribution against the second-named second defendant, Mr Sher. That was duly done and a notice of contribution was issued against Mr Sher on the basis that he remained a party to the proceedings as second-named second defendant.
8 This attracted the attention of Mr Sher's solicitors who had believed, not unnaturally, that by then the proceedings against him had been terminated. Investigations both by the solicitors for Mr Sher and by the solicitors for the plaintiff unearthed the omission of any formal order for the discontinuance. The plaintiff, by its solicitors, and Mr Sher, by his solicitors, now join in an application to this Court for such an order for discontinuance to be made, not merely today, but to be backdated until August 2001 or thereabouts.
9 An effect of making such an order, nunc pro tunc, today might be to vitiate the effect of the notice of contribution issued by the third defendants against Mr Sher. This is acknowledged to be at least one purpose for the present application, or at least a purpose leading
(Page 6)
- Mr Sher to support the plaintiff in this application. This is because Mr Sher submits that what has happened deprives him of an opportunity to scrutinise any affidavit in support of an application for leave to issue third party proceedings by the third defendants against him.
10 The plaintiff joins the lists in support of that contention but only to a more limited extent. It submits that the commencement of third party proceedings now would require leave and that this would mean in effect that the third defendants would need to explain away the delay. This might result, so the plaintiff submits, in terms being imposed which would prevent prejudice to the plaintiff occurring by delaying any entry for trial.
11 As to those submissions, I should say that, on the assumption that there is an arguable cause of action for contribution or indemnity by the third defendants against Mr Sher, there does not seem to be any particular advantage for Mr Sher in insisting upon the issue of a third party notice prefaced by an application by the third defendants for leave.
12 An intended third party would not normally be served with the application for leave to commence third party proceedings or be heard on that application. Although the sufficiency of the proposed cause of action in the third party proceedings would unquestionably be scrutinised on any such application, the predominant consideration when deciding whether or not leave should be granted is to evaluate the impact of the proposed third party proceedings upon the plaintiff's claim. The court will usually consider whether or not the proposed third party proceedings would unreasonably burden or delay the prosecution of the claim which the plaintiff is pursuing. If so prejudice arises from reasons associated with a side claim to which the plaintiff is not party, this may induce the court to refuse leave to issue the proposed third party proceedings.
13 It seems that, in the present circumstances, the third defendants issued the notice of contribution at a time when Mr Sher formally remained a party to the proceedings and that, therefore, the notice of contribution was regular and should be allowed to take its effect. It is no doubt somewhat galling for Mr Sher to realise that the ordinary course of events expected to lead to the discontinuance of the action against him was not followed in this case and it must be small consolation to him to have it pointed out, as I nevertheless must, that it was always open to him to apply to extract any anticipated order. That
(Page 7)
- is an undeniable fact in the case and that missed opportunity is sufficient for me to conclude that the actions taken by the third defendants, on the basis of the record as it stood, should not be disturbed. Consequently, I consider that the contribution proceedings commenced by the third defendants against Mr Sher were regularly commenced and instituted and should have effect.
14 It follows that on the application to extract the elusive order which is the subject of the plaintiff's summons, I should make an order today that the plaintiff's action be discontinued against the second-named second defendant and that there be no order as to costs in the action as between the plaintiff and the second-named second defendant. That order should date from today.
15 The effect of that is that Mr Sher will cease to be a party to the action commenced by the plaintiff but he remains a respondent to the notice of contribution commenced by the third defendants. Accordingly, I consider that I should direct that the name of Mr Jeffery Leon Sher be deleted as a second defendant but replaced as third party. Also I will order that, from today, the contribution proceedings should be retitled, Third Party Proceedings, with the third defendants being named as the plaintiffs in the third party proceedings and Mr Sher being the sole defendant in these third party proceedings.
16 Having regard to the need to regulate the record, I consider that I should direct that this summons be further relisted as a general summons for directions in the action and in the third party proceedings so that consideration can be given to any necessary further orders or directions dealing with the following topics:
(a) an order for the delivery of pleadings in the third party proceedings between the third defendants and the third party Jeffrey Leon Sher;
(b) whether or not the third party proceedings should be heard at, or immediately after, the trial of the plaintiff's action;
(c) whether the plaintiff should be permitted to enter its action against the remaining defendants for trial, notwithstanding the pendency of third party proceedings against Mr Sher or any delay in finalising pleadings in those third party proceedings;
(Page 8)
- (d) reserving liberty to any party to apply to sever the hearing of the third party proceedings from the trial of the plaintiff's action in the event that prejudice, by reason of delay or other cause, may occur if the third party proceedings were to go to trial at the same time as the plaintiff's action against the defendants.
17 As foreshadowed during the course of argument, I invite the solicitors for the plaintiff to submit a minute of proposed orders in those terms for approval.
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