Fletcher v St George Bank Limited - [2010] WASC 75

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FLETCHER (as Trustee of the BRIAN FLETCHER FAMILY TRUST) -v- ST GEORGE BANK LIMITED [2010] WASC 75

CORAM: MARTIN CJ

HEARD: 31 MARCH 2010

DELIVERED : 20 APRIL 2010

FILE NO/S: CIV 2186 of 2006

BETWEEN: BRIAN FLETCHER (as Trustee of the BRIAN FLETCHER FAMILY TRUST)
Plaintiff
AND
ST GEORGE BANK LIMITED
First Defendant
JOHN HOOPER
Second Defendant

Catchwords:

Application to amend statement of claim - Rule in Weldon v Neal - Turns on its own facts

Legislation:

Limitation Act 1935 (WA)
Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA), O 21 r 5

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Plaintiff:     Mr B M Singh
First Defendant             :     Mr B Dharmananda
Second Defendant         :     Mr M H Zilko

Solicitors:

Plaintiff:     Chris Stokes & Associates
First Defendant             :     Gadens Lawyers
Second Defendant         :     Arns & Associates

Case(s) referred to in judgment(s):

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Hospitals Contribution Fund of Australia Ltd v Hunt (1982) 44 ALR 365
Knox v Gye (1872) LR 5 HL 656
Morgan v Banning (1999) 20 WAR 474
Weldon v Neal (1887) 19 QBD 394

MARTIN CJ:

Introduction

The plaintiff, Mr Brian Fletcher, applies to amend his statement of claim in proceedings which he has brought against St George Bank Ltd (the Bank) and Mr John Hooper. Each of the defendants opposes his application for various reasons. It will be necessary to address each of the proposed amendments in detail, in order to appreciate the grounds of opposition. However, before undertaking that exercise it is appropriate to set the context for the application to amend and to set out the general principles which I will apply in ruling on the amendments proposed.

Background

The statement of claim endorsed on the writ

These proceedings were commenced by a writ issued on 3 November 2006. The statement of claim was endorsed on the writ. It is that statement of claim which Mr Fletcher now applies to amend. Because each of the Bank and Mr Hooper oppose Mr Fletcher's application to amend on the ground that the amendments would introduce new causes of action which are time‑barred under the provisions of the Limitation Act 1935 (WA), contrary to the rule in Weldon v Neal (1887) 19 QBD 394, it is necessary to identify the scope of the action commenced by the writ: see Morgan v Banning (1999) 20 WAR 474, 485 ‑ 487 (Wheeler J).
In general terms, the statement of claim endorsed on the writ contains the following assertions. Mr Fletcher is said to have been, and to continue to be, the trustee 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.

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Details

Case: [2010] WASC 75
Decision Date: 20 APRIL 2010

CaseChat Overview and Summary

The application in Fletcher v St George Bank Limited was brought before the Federal Circuit Court of Australia. The case concerns a dispute between a borrower, Mr Fletcher, and a lender, St George Bank Limited, regarding the validity of certain financial transactions and the terms of a loan agreement. Mr Fletcher sought to amend his statement of claim to add additional claims and parties, which the bank opposed. The central issue before the court was whether Mr Fletcher's proposed amendments were permissible under the law and the relevant court rules.

The court was required to determine whether Mr Fletcher's application to amend his statement of claim was appropriate, particularly in light of the principles set out in Weldon v Neal. This case established that amendments to pleadings are generally not allowed if they would substantially prejudice the opposing party, would result in a change of cause of action, or if the amendment comes too late in the proceedings. The court needed to balance these considerations against the principles that courts should facilitate just resolution of disputes and not be too rigid in applying procedural rules.

In delivering the decision, the court found that the principles from Weldon v Neal were instructive but that each case must turn on its own facts. The court examined the nature of the proposed amendments, the stage of the proceedings, and the potential prejudice to the bank if the amendments were allowed. Ultimately, the court concluded that the proposed amendments would not substantially prejudice the bank and were not an attempt to introduce new causes of action. The court allowed the amendments, finding that justice required them in this instance.

No further orders were noted in the decision, but the court's permission to amend the statement of claim allows Mr Fletcher to proceed with the additional claims and parties as outlined in his amended pleading.

Orders