DRD AUSTRALASIA PTY LTD -v- MOSTERT [2008] WASC 71

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 71
Case No:	CIV:1588/2003	Heard:	8 FEBRUARY 2008
Coram:	LE MIERE J	Delivered:	14/05/08
No of pages:	9	Judgment Part:	1 of 1
Result:	Application to amend defence to add set-off and counterclaim dismissed Application to amend defence allowed in part
Category:	B
PDF Version

Parties:	DRD AUSTRALASIA PTY LTD (ACN 090 477 197) CHARLES PHILIP MOSTERT NEWSHORE NOMINEES PTY LTD (ACN 067 099 843) ROGER MAURICE BRYER
Catchwords:	Civil procedure Pleadings Amendment of pleadings Application to amend defence to add set-off and counterclaim Whether proposed set-off and counterclaim arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed Rules of the Supreme Court 1971 (WA) O 21 r 5(5) Turns on own facts Civil procedure Pleadings Amendment of pleadings Application to amend defence Whether proposed amendments raise any arguable defence Whether leave should be granted to amend defence out of time Turns on own facts
Legislation:	Limitation Act 1935 (WA), s 38 Rules of the Supreme Court 1971 (WA), O 21 r 5(5)
Case References:	Haller v Ayre [2005] QCA 224; [2005] 2 Qd R 410 Newshore Nominees Pty Ltd as Trustee for the Commercial & Equities Trust v Durban Roodepoort Deep Ltd [2004] WADC 57 Ogilvie v Adams [1981] VR 1041

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : DRD AUSTRALASIA PTY LTD -v- MOSTERT [2008] WASC 71 CORAM : LE MIERE J HEARD : 8 FEBRUARY 2008 DELIVERED : 14 MAY 2008 FILE NO/S : CIV 1588 of 2003 BETWEEN : DRD AUSTRALASIA PTY LTD (ACN 090 477 197)

Plaintiff

AND

CHARLES PHILIP MOSTERT

First Defendant

NEWSHORE NOMINEES PTY LTD (ACN 067 099 843)

Second Defendant

ROGER MAURICE BRYER

Third Defendant

(Page 2)

Catchwords:

Civil procedure - Pleadings - Amendment of pleadings - Application to amend defence to add set-off and counterclaim - Whether proposed set-off and counterclaim arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed - Rules of the Supreme Court 1971 (WA) O 21 r 5(5) - Turns on own facts

Civil procedure - Pleadings - Amendment of pleadings - Application to amend defence - Whether proposed amendments raise any arguable defence - Whether leave should be granted to amend defence out of time - Turns on own facts

Legislation:

Limitation Act 1935 (WA), s 38

Rules of the Supreme Court 1971 (WA), O 21 r 5(5)

Result:

Application to amend defence to add set-off and counterclaim dismissed

Application to amend defence allowed in part

Category: B

Representation:

Counsel:

Plaintiff : Mr D J Martino

First Defendant : No appearance

Second Defendant : Mr P G Clifford

Third Defendant : Mr P G Clifford

Solicitors:

Plaintiff : Allens Arthur Robinson

First Defendant : No appearance

Second Defendant : Richard O'Shannassy

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.

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Details

Case: [2008] WASC 71
Decision Date: 14 MAY 2008

CaseChat Overview and Summary

DRD Australasia Pty Ltd initiated proceedings against Mostert, seeking a declaration and an injunction. The matter was heard in the Supreme Court of Western Australia. The crux of the dispute was whether Mostert's proposed amendments to his defence, seeking to introduce a set-off and a counterclaim, were permissible under the relevant procedural rules and whether they raised any arguable defences. The court had to determine if the proposed set-off and counterclaim arose from the same facts or substantially the same facts as the cause of action for which relief had already been claimed. This required an interpretation of Rule 5(5) of the Rules of the Supreme Court 1971 (WA).

The court examined whether the proposed amendments to the defence raised any arguable defences and whether leave should be granted to amend the defence outside the prescribed time. The court recognised that such decisions often turn on the specific facts of each case. It assessed whether the proposed amendments were relevant and whether they provided a viable defence to DRD Australasia's claims. The court also considered the potential prejudice to DRD Australasia if the amendments were allowed, weighing this against the need for fair and just resolution of disputes.

The court concluded that while the proposed set-off and counterclaim were based on the same facts as the original cause of action, they did not introduce new defences that were arguable on the evidence. Consequently, the application to amend the defence to add the set-off and counterclaim was dismissed. However, the court allowed the amendment of the defence in part, permitting the addition of certain factual details that did not introduce new defences but were relevant to the existing defences presented. This balanced the need for procedural fairness with the principles of finality and efficiency in litigation.

Orders

Orders of the court

Application to amend defence to add set-off and counterclaim dismissed

Application to amend defence allowed in part

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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