Famel Pty Ltd v Burswood Management Ltd - [1990] FCA 212

Re: FAMEL PTY LTD and STEVEN P.H. LUNN
And: BURSWOOD MANAGEMENT LIMITED; DALLAS REGINALD DEMPSTER; LIM KOK THAY; WEST
AUSTRALIAN TRUSTEES LIMITED and RIDER HUNT and PARTNERS
No. WA G121 of 1988
FED No. 212
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Practice and Procedure - pleadings - statement of claim - late amendment - separate trial of preliminary issue set down - amendment vitiating utility of separate trial of issue - leave to amend on condition - security for costs of amendment and costs thrown away.

Elders Trustee and Executor Co. Ltd v E.G. Reeves Pty Ltd (1987) 78 ALR 193

Flannigan in (1989) 9 Oxford Journal of Legal Studies 285

HEARING

PERTH

#DATE 24:5:1990

Counsel for the Applicants: Mr D. Stone

Solicitors for the Applicants: Williams and Hughes

Counsel for the First and Mr S.J. Archer
Second Respondents: and Mr P.C. Blackman

Solicitors for the First Robinson Cox
and Second Respondents:

Counsel for the Fourth Mr K. Martin
Respondent:

Solicitors for the Fourth Phillips Fox
Respondent:

Counsel for the Fifth Mr J.R.S. Ley
Respondent:

Solicitors for the Fifth Freehill Hollingdale and Page
Respondent:

ORDER

On the Applicants' motion filed 21 May 1990:

1. The applicants have leave to amend paragraph 20 of the statement of claim as set out in the minute filed 21 May 1990.

2. The applicants have leave to amend the answers to the fourth respondent's request for further and better particulars of the statement of claim delivered on 1 December in accordance with the minute filed herein, the filing and service of the minute to stand as filing and service of the amended particulars.

3. Provided that the applicants pay into Court on or before Tuesday, 29 May 1990 the sum of Two Thousand Five Hundred Dollars ($2,500) by way of security for the first and fourth respondents' costs of the motion and costs thrown away by reason thereof:

(a) The applicants have leave to amend paragraph 18 of the amended statement of claim by the inclusion of the words "the facts and matters pleaded in paragraph 7 so far as they are pleaded against the fourth respondent" after the words "derives from".

(b) The trial of the preliminary issues set down for 1 and 5 June be vacated.

4. The applicants to file and deliver their amended statement of claim on or before 29 May 1990.

5. The first and fourth respondents to file any amended defences on or before 5 June 1990.

6. The time limited by the directions given on 19 April 1990 for filing of outlines of argument in relation to the trial of the preliminary issue be extended to 31 May 1990 provided that if the applicants comply with the conditions set out in paragraph 3 hereof no such outlines are to be filed.

7. The applicants to pay the first and fourth respondents' costs of the motion and any costs thrown away by reason of the…

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 Famel Pty Ltd v Burswood Management Ltd 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: [1990] FCA 212
Decision Date: 24 MAY 1990

CaseChat Overview and Summary

Famel Pty Ltd filed a claim against Burswood Management Ltd, and others, in the Federal Court of Australia. The nature of the dispute involved claims related to breaches of contract and related legal issues. The court was required to decide whether Famel Pty Ltd could amend its statement of claim after the preliminary issues had been set down for trial, and if such an amendment would vitiate the utility of the separate trial. The court was also required to determine the appropriate conditions for granting leave to amend.

The court found that an amendment to the statement of claim could potentially vitiate the utility of the separate trial of the preliminary issue. However, it also found that there were exceptional circumstances justifying the amendment. The court concluded that leave should be granted on the condition that Famel Pty Ltd pay a sum of money into court as security for the costs of the motion and any costs thrown away by reason of the amendments. The court further determined that the trial of the preliminary issues should be vacated, and that the time for filing outlines of argument in relation to the trial of the preliminary issue should be extended.

The final orders of the court were that Famel Pty Ltd had leave to amend its statement of claim, on the condition that it paid a sum of money into court as security for costs. The trial of the preliminary issues was vacated, and the time for filing outlines of argument was extended. Famel Pty Ltd was also required to pay the costs of the motion and any costs thrown away by reason of the amendments. The first and fourth respondents were given time to file any amended defences.

Orders

Orders of the court

On the Applicants' motion filed 21 May 1990:

1. The applicants have leave to amend paragraph 20 of the statement of claim as set out in the minute filed 21 May 1990.

2. The applicants have leave to amend the answers to the fourth respondent's request for further and better particulars of the statement of claim delivered on 1 December in accordance with the minute filed herein, the filing and service of the minute to stand as filing and service of the amended particulars.

3. Provided that the applicants pay into Court on or before Tuesday, 29 May 1990 the sum of Two Thousand Five Hundred Dollars ($2,500) by way of security for the first and fourth respondents' costs of the motion and costs thrown away by reason thereof:

(a) The applicants have leave to amend paragraph 18 of the amended statement of claim by the inclusion of the words "the facts and matters pleaded in paragraph 7 so far as they are pleaded against the fourth respondent" after the words "derives from".

(b) The trial of the preliminary issues set down for 1 and 5 June be vacated.

4. The applicants to file and deliver their amended statement of claim on or before 29 May 1990.

5. The first and fourth respondents to file any amended defences on or before 5 June 1990.

6. The time limited by the directions given on 19 April 1990 for filing of outlines of argument in relation to the trial of the preliminary issue be extended to 31 May 1990 provided that if the applicants comply with the conditions set out in paragraph 3 hereof no such outlines are to be filed.

7. The applicants to pay the first and fourth respondents' costs of the motion and any costs thrown away by reason of the amendments.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.