Genocanna Nominees Pty Ltd v Thirsty Point Pty Ltd (No 2)

[2006] FCA 1335

FEDERAL COURT OF AUSTRALIA

Genocanna Nominees Pty Ltd v Thirsty Point Pty Ltd (No 2) [2006] FCA 1335

PRACTICE AND PROCEDURE – application for leave to amend statement of claim after trial and delivery of reasons – leave granted.

Cropper v Smith (1884) 26 Ch D 700 applied
Clough and Rogers v Frog (1974) 4 ALR 615 cited
State of Queensland & Anor v J L Holdings Pty Ltd (1997) 189 CLR 146 cited

GENOCANNA NOMINEES PTY LTD ACN 008 809 649 & ORS v THIRSTY POINT PTY LTD ACN 054 451 768 & ORS

WAD 102 OF 2005

LANDER J
12 OCTOBER 2006
ADELAIDE (VIDEOLINK TO PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 102 OF 2005

BETWEEN:

GENOCANNA NOMINEES PTY LTD ACN 008 809 649
First Applicant

BRIAN FRANCIS WHITE
Second Applicant

GLORIA ANNETTE WHITE
Third Applicant

AND:

THIRSTY POINT PTY LTD ACN 054 451 768
First Respondent

JOHANNA BAHR
Second Respondent

MICHEAL WALTER BAHR
Third Respondent

CROSSCORP ACCOUNTING PTY LTD ACN 088 925 080
Fourth Respondent

LEWIS GEORGE CROSS
Fifth Respondent

JUDGE:	LANDER J
DATE OF ORDER:	3 OCTOBER 2006
WHERE MADE:	ADELAIDE (VIDEOLINK TO PERTH)

THE COURT ORDERS THAT:

1.Leave to the second and third applicants to amend their statement of claim in accordance with the proposed amended statement of claim annexed to the affidavit of the third respondent sworn on 25 September 2006.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 102 OF 2005

BETWEEN:

GENOCANNA NOMINEES PTY LTD ACN 008 809 649
First Applicant

BRIAN FRANCIS WHITE
Second Applicant

GLORIA ANNETTE WHITE
Third Applicant

AND:

THIRSTY POINT PTY LTD ACN 054 451 768
First Respondent

JOHANNA BAHR
Second Respondent

MICHEAL WALTER BAHR
Third Respondent

CROSSCORP ACCOUNTING PTY LTD ACN 088 925 080
Fourth Respondent

LEWIS GEORGE CROSS
Fifth Respondent

JUDGE:	LANDER J
DATE:	12 OCTOBER 2006
PLACE:	ADELAIDE (VIDEOLINK TO PERTH)

REASONS FOR JUDGMENT

1. On 3 October 2006 I gave the second and third applicants leave to amend their statement of claim to accord with my reasons for judgment handed down on 22 September 2006.  These are my reasons for doing so.

2. On 22 September 2006 I published my reasons for judgment in this matter, as a result of which the second and third applicants applied to amend their statement of claim.  In those reasons I found that the first applicant is entitled to succeed against the first, second and third respondents and is entitled to the loss and damage pleaded.  I found that the second and third applicants did not establish any loss or damage in accordance with their pleading.  However, I found that the second and third applicants suffered loss or damage which I assessed, in the case of the second applicant, at $31,518 exclusive of interest and, in the case of the third applicant, in the sum of $94,554 again, exclusive of interest.

3. When I handed down my reasons for judgment, I did not enter any orders for three reasons.  First, I indicated that I would need to be addressed on the appropriate calculation of interest.  Secondly, I needed to be addressed on the form of an order for rescission to which I found the first applicant was entitled.  Thirdly, I thought it appropriate to allow the second and third applicants to consider my reasons in case they wished to make any application to amend their pleadings.

4. The second and third applicants applied to amend their statement of claim to accord with my reasons for judgment and to claim the sums to which I indicated the second and third applicants would be entitled if their pleadings were amended.

5. The application was very late being made after trial and after the Court’s reasons had been exposed. The application for leave to amend was made pursuant to O 13 R 2. Order 13 rule 2 provides:

   ‘(1)Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.

   (2)All necessary amendments should be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.’

6. The power which is given by that rule was described by Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 710-711:

   ‘… the objects of Courts  is to decide the rights of the parties, and not to punish them for mistakes in the conduct of their cases …  I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party …  as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.’

7. That dicta has been applied on any number of occasions since that time and, most recently and relevantly, by the High Court in Clough and Rogers v Frog (1974) 4 ALR 615 and the State of Queensland & Anor v J L Holdings Pty Ltd (1997) 189 CLR 146. The principle is still sound.

8. After I published my reasons, I invited the parties to provide any information upon which they intended to rely either in support of the application for the amendment or in opposition to it so that the application might be heard as soon as was possible.

9. The applicants provided me with a copy of a proposed amended statement of claim.  They relied on my reasons for their application.

10. The respondents did not file any evidence in opposition to the application.  They did not point to any prejudice which they might suffer if the application were granted.  They neither consented to nor opposed the application.

11. The respondents had been on notice since November 2005 that expert evidence would be led to support a claim for loss and damage in accordance with the proposed amendment.

12. It appears, however, that the applicants did not at that same time address the need to seek to amend the statement of claim or, if they did, thought it unnecessary.

13. At the trial, evidence to which no objection was made was led from Mr Gilmour to establish loss or damage in accordance with the proposed amendment.  No evidence was led from the respondents in answer to the expert evidence of the applicant.

14. Because the respondents were always on notice of the applicants’ claim for loss and damage in the manner contemplated in the proposed amendment, and because the trial proceeded upon the basis that was the applicants’ case, in my opinion, justice demanded that I allow the proposed amendment.

15. For those reasons, I allowed the second and third applicants to amend in accordance with the proposed amended statement of claim exhibited to the affidavit of the third applicant sworn on 25 September 2006.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:       12 October 2006

Counsel for the Applicants:	Mr D Feinauer
Solicitor for the Applicants:	Feinauer Commercial Lawyers
Counsel for the First, Second and Third Respondents:	Mr M Dawson
Solicitor for the First, Second and Third Respondents:	Dawson Davies
Date of Hearing:	3 October 2006
Date of Judgment:	12 October 2006