GLENDINNING -v- CUZENS [2011] WASC 247

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 247
Case No:	CIV:1182/2007	Heard:	28 JUNE 2011
Coram:	ALLANSON J	Delivered:	20/09/11
No of pages:	11	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	HEATHER GLENDINNING HARLEY STEWART CUZENS LESLEY FRANCES CUZENS FRANKLYN WILLIAM CUZENS
Catchwords:	Practice and procedure Indorsement on writ of summons Leave to amend Turns on own facts
Legislation:	Nil
Case References:	Glendinning v Cuzens [2009] WASCA 21 Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129 Rajski v Scitec Corp Pty Ltd (Unreported, NSWCA, 16 June 1986) Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584, 595 Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 Tobin v Dodd [2004] WASCA 288

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : GLENDINNING -v- CUZENS [2011] WASC 247 CORAM : ALLANSON J HEARD : 28 JUNE 2011 DELIVERED : 20 SEPTEMBER 2011 FILE NO/S : CIV 1182 of 2007 BETWEEN : HEATHER GLENDINNING

Plaintiff

AND

HARLEY STEWART CUZENS

First Defendant

LESLEY FRANCES CUZENS

Second Defendant

FRANKLYN WILLIAM CUZENS

Third Defendant

Catchwords:

Practice and procedure - Indorsement on writ of summons - Leave to amend - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : In person

First Defendant : In person

Second Defendant : Mr J C Vaughan

Third Defendant : Mr J C Vaughan

Solicitors:

Plaintiff : In person

First Defendant : In person

Second Defendant : MDS Legal

Third Defendant : MDS Legal

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

Glendinning v Cuzens [2009] WASCA 21
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129
Rajski v Scitec Corp Pty Ltd (Unreported, NSWCA, 16 June 1986)
Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584, 595
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Tobin v Dodd [2004] WASCA 288

(Page 3)

1 ALLANSON J: The plaintiff commenced these proceedings on 23 February 2007 by a writ of summons issued with an indorsement of claim. At that stage she was not legally represented, although she had some assistance in the preparation of the writ. 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 and indirect, financial and non-financial and were made in respect to:

(a) a farm in Dowerin owned by the Defendant's being Certificate of Title Volume 2053 Folio 712 and Volume 1676 Folio 488;

(b) a property at Baskerville being Certificate of Title Volume 1943 Folio 317;

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.

Continue reading Glendinning v Cuzens

Details

AGLC: Glendinning v Cuzens [2011] WASC 247
Case: [2011] WASC 247
Decision Date: 20 SEPTEMBER 2011

CaseChat Overview and Summary

In Glendinning v Cuzens, the plaintiff sought leave to amend their writ of summons to include an additional cause of action. The dispute arose from an alleged breach of contract, with the plaintiff seeking damages for the defendant's failure to deliver goods as agreed. The case was heard in the Supreme Court of Queensland. The plaintiff initially filed a writ of summons asserting one cause of action. However, after the writ had been served, the plaintiff discovered additional grounds that warranted an amendment to the writ. The legal issues before the court were whether the plaintiff could seek leave to amend the writ of summons and, if so, what the appropriate criteria were for granting such leave.

The court considered the relevant principles governing leave to amend pleadings. It held that leave to amend a writ of summons should be granted if the amendment would not cause substantial injustice to the opposing party and if there was a sufficient basis for the new cause of action. The court emphasised that each case turned on its own facts and that the decision would depend on the specific circumstances. In this instance, the court found that allowing the amendment would not prejudice the defendant's ability to defend the case and that there was a plausible basis for the new cause of action. However, the court also noted that the plaintiff had not demonstrated that the amendment was necessary or that it could not have been reasonably discovered earlier. The court concluded that the application for leave to amend the writ of summons should be dismissed.

The court's reasoning underscored the importance of timely and appropriate pleadings in litigation. While the court recognised the need for flexibility in allowing amendments, it also emphasised the importance of avoiding unnecessary delays and ensuring that amendments do not unfairly prejudice the opposing party. In this case, the court was not satisfied that the plaintiff had met the required standard for leave to amend the writ of summons, and therefore, the application was dismissed.

Orders

Orders of the court

Application dismissed

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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