Glendinning v Cuzens

Case [2009] WASCA 21

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   GLENDINNING -v- CUZENS [2009] WASCA 21

CORAM:   PULLIN JA

NEWNES AJA

HEARD:   8 OCTOBER 2008

DELIVERED          :   23 JANUARY 2009

FILE NO/S:   CACV 34 of 2008

BETWEEN:   HEATHER GLENDINNING

Appellant

AND

HARLEY STEWART FRANKLYN CUZENS
First Respondent

LESLEY FRANCES CUZENS
Second Respondent

FRANKLYN WILLIAM CUZENS
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

File No  :CIV 1182 of 2007

Catchwords:

Practice and procedure - Inadequate indorsement of claim on writ - Writ set aside - Function of indorsement of claim - Whether writ should be set aside where indorsement inadequate - Whether plaintiff should have leave to amend indorsement - Relevant considerations

Legislation:

Rules of the Supreme Court 1971 (WA), O 2 r 1, O 6 r 1(2), O 20 r 19(1), O 20 r 2(2)

Result:

Leave to appeal granted
Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     Mr P N Bevilacqua

First Respondent           :     In person

Second Respondent      :     Mr P B O'Neal

Third Respondent          :     Mr P B O'Neal

Solicitors:

Appellant:     Butcher Paull & Calder

First Respondent           :     In person

Second Respondent      :     McCallum Donovan Sweeney

Third Respondent          :     McCallum Donovan Sweeney

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

ABB Service Pty Ltd v Hetherington [2001] WASCA 235

ABB Service Pty Ltd v Hetherington [2001] WASCA 417

Dodoro v Knighting [2004] VSCA 217

Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148

Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326

Little v State of Victoria [1998] 4 VR 596

Marketing Advisory Services v Football Tasmania Ltd [2002] FCAFC 165

Morgan v Banning (1999) 20 WAR 474

Pontin v Wood [1962] 1 QB 594

Re Luck (2003) 203 ALR 1

Salter Rex & Co v Ghosh [1971] 2 QB 597

The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412

Tristram v Hyundai Automotive Distributors Australia Pty Ltd [2005] WASCA 168

Weatherall v Satellite Receiving Systems (Australia) Pty Ltd [1999] FCA 741

Wickstead v Browne (1992) 30 NSWLR 1

Wilson v Official Trustee in Bankruptcy [2000] FCA 304

  1. PULLIN JA:  I agree with Newnes AJA.

  2. NEWNES AJA: This is an appeal against a decision of Master Sanderson made on 6 March 2008 setting aside the appellant's amended writ of summons, pursuant to O 6 r 1(2).

  3. The writ of summons in the action was issued on 23 February 2007 with an indorsement of claim.  It seems that at that stage the appellant was not represented by solicitors.  The indorsement on the writ was as follows:

    By reason of contributions made by the Plaintiff and declarations by the Defendants that she would benefit from such contributions the Plaintiff claims as against each of the Defendants a constructive trust in relation to her contributions and a consequential order for equitable compensation to be assessed.

    The contributions made by the Plaintiff were both direct…

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AGLC
Glendinning v Cuzens [2009] WASCA 21
Case
[2009] WASCA 21
Decision Date

CaseChat Overview and Summary

The Court of Appeal of the Supreme Court of Western Australia considered the appeal brought by Glendinning against Cuzens, focusing on the procedural aspects surrounding the indorsement of a claim on a writ of summons. The appellant, Glendinning, had initially issued a writ of summons on 23 February 2007, which was subsequently amended without leave on 22 June 2007. Following service of the writ, the respondents argued that the indorsement on the writ was defective and applied to have the writ set aside. The Master of the Supreme Court set aside the writ, but this decision was later appealed and overturned by the Court of Appeal, which granted Glendinning leave to amend the indorsement on the writ.

The primary legal issues before the Court of Appeal were whether the writ should be set aside due to an inadequate indorsement of claim and whether Glendinning should be granted leave to amend the indorsement. The Court of Appeal considered the function of the indorsement of a claim on a writ and the relevant considerations for setting aside a writ on this basis. The Court found that the indorsement was indeed deficient and that the appellant had conceded this point at the hearing before the Master. However, the Court also recognised the importance of allowing parties to correct procedural deficiencies where possible, provided it does not unduly prejudice the opposing party. Therefore, the Court allowed the appeal and granted Glendinning leave to amend the indorsement on the writ.

In determining the costs of the application and the appeal, the Court of Appeal noted that Glendinning had failed to acknowledge the deficiency in the indorsement until the hearing before the Master. Despite this, the Court exercised its discretion to order that the costs of the application and appeal were to be decided on the papers, without awarding the respondents their full costs. This decision reflects the Court's balanced approach, taking into account both the procedural shortcomings and the potential for remedy.

The Court of Appeal's final orders included setting aside the decision of the Master, granting Glendinning leave to amend the indorsement on the writ, and reserving to the trial judge the date upon which the amendment is to take effect. The Court also ordered that the costs of the application to amend the indorsement were to be paid by Glendinning, while the costs of the appeal and below were to be decided on the papers. This outcome underscores the importance of procedural compliance in litigation while also recognising the Court's discretion to allow amendments where appropriate.

Orders

Orders of the court

Leave to appeal granted

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: On 23 January 2009, this court granted leave to appeal and allowed an appeal against a decision of Master Sanderson setting aside the appellant's amended writ of summons: Glendinning v Cuzens [2009] WASCA 21. The orders of the Master were set aside and the appellant was given leave to make an application to this court within 14 days to amend the indorsement on the writ, failing which the writ would be set aside. The appellant duly brought such an application and, on 15 May 2009, this court granted leave to amend the indorsement, reserving to the trial judge the date upon which the amendment is to take effect. The appellant was ordered to pay the costs of that application. The court ordered that the question of costs was otherwise to be decided on the papers and directions were made for the filing and service of written submissions. The written submissions on costs have been filed and served and the costs of the appeal and below now fall for determination. The relevant facts are set out in the judgment delivered on 23 January 2009. They can be sufficiently summarised for present purposes as follows. The appellant issued a writ of summons on 23 February 2007 with an indorsement of claim. At that stage the appellant was unrepresented. The indorsement was amended without leave on 22 June 2007. At that stage the appellant was apparently represented by her current solicitors. On 13 November 2007, the writ was served on the second and third respondents, who entered a conditional appearance. Their solicitors subsequently wrote to the appellant's solicitors contending that the indorsement on the writ was defective. The appellant's solicitors did not take any steps to amend the indorsement and, on 7 December 2007, the second and third respondents applied for an order that the writ be set aside, alternatively the indorsement be struck out, and alternatively that the amended indorsement be struck out. Orders were made by consent on 20 December 2007 that the application be heard at a special appointment and directions made for the filing and service of outlines of submissions and lists of authorities. The respondents complied with the directions but, despite promptings by the respondents' solicitors, the appellant did not. When the matter came on for hearing at the special appointment on 6 March 2008, no affidavit evidence or submissions had been filed by the appellant. At the outset of the hearing, counsel for the appellant conceded the indorsement was deficient and sought 21 days to file a further minute of amended indorsement. At that stage no proposed amended indorsement was proffered. The Master declined to allow further time and ordered that the amended writ of summons be set aside. As we have mentioned above, the decision of the Master was set aside by this court and the appellant was subsequently granted leave to amend the indorsement on the writ. The respondents seek an order that the appellant pay their costs of the application before Master Sanderson and their costs of the appeal. They argue that, having failed to acknowledge that the indorsement was defective until the hearing before Master Sanderson, it is just that the appellant bears the costs of that application. It was submitted that even had Master Sanderson made the substantive orders ultimately made by this court, the appellant would have had to bear the costs of the application.

Ratio Decidendi

Legal Principle Established

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