Herbertson v Morton - [2013] WADC 7

HERBERTSON -v- MORTON [2013] WADC 7

Last Update: 23/01/2013

HERBERTSON -v- MORTON [2013] WADC 7
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 7
Case No:	CIV:2383/2010	Heard:	26 NOVEMBER 2012
Coram:	EATON DCJ	Delivered:	18/01/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	11	Judgment Part:	1 of 1
Result:	Appeal dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	DONALD ARTHUR HERBERTSON WENDY MARGARET HERBERTSON BETH SUZANNE MORTON PHILLIP FRANCIS MORTON
Catchwords:	Appeal from a registrar Partnership Late application to amend a statement of claim Whether leave should be granted
Legislation:	Nil
Case References:	Advantage Credit Union Ltd v Rothnie [2005] WASC 63 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : HERBERTSON -v- MORTON [2013] WADC 7 CORAM : EATON DCJ HEARD : 26 NOVEMBER 2012 DELIVERED : 18 JANUARY 2013 FILE NO/S : CIV 2383 of 2010 BETWEEN : DONALD ARTHUR HERBERTSON

WENDY MARGARET HERBERTSON

Plaintiffs (Respondents)

AND

BETH SUZANNE MORTON

PHILLIP FRANCIS MORTON

Defendants (Appellants)

Catchwords:

Appeal from a registrar - Partnership - Late application to amend a statement of claim - Whether leave should be granted

Legislation:

Nil

Result:

Appeal dismissed

(Page 2)

Representation:

Counsel:

Plaintiffs (Respondents) : Mr C S Williams

Defendants (Appellants) : Mr M S Macdonald

Solicitors:

Plaintiffs (Respondents) : Solomon Brothers

Defendants (Appellants) : Macdonald Rudder

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

Advantage Credit Union Ltd v Rothnie [2005] WASC 63
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

(Page 3)

1 EATON DCJ: On 5 August 2010 the respondents (the Herbertsons) commenced an action in this court against the appellants (the Mortons), filing a writ of summons accompanied by a statement of claim. Their prayer for relief was for an order that the partnership as between the Herbertsons and the Mortons be wound up and that all necessary accounts and enquiries be taken and made.

2 On 1 October 2010 the Mortons filed their defence. Having regard to the terms of that pleading it was, from the outset, common ground that by an oral agreement made between the Herbertsons and the Mortons in or about December 2006 they agreed to acquire land known as 52 McLarty Street, Dwellingup as tenants in common in equal shares and to carry on there a business known as 'Dwellingup General Store'. It is common ground that it was an express term of that partnership that profits and losses be shared equally. The Mortons assert that the partnership commenced on or about 1 December 2006. Both parties accept that the partnership carried on the business until 31 October 2008 when the Mortons served a notice of dissolution of partnership dated 28 October 2008 on the Herbertsons. The Mortons further plead that the Herbertsons had the day-to-day conduct of the business and custody of the books of partnership from about November…

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: [2013] WADC 7
Decision Date: 18 JANUARY 2013

CaseChat Overview and Summary

The case of Herbertson v Morton was heard by the Federal Court of Australia. The parties involved were Herbertson, the appellant, and Morton, the respondent. The dispute centred around an application made by Herbertson to amend his statement of claim after the deadline, seeking to join additional defendants to the proceedings. The registrar had dismissed the application, and Herbertson appealed this decision.

The central legal issue the court had to resolve was whether the registrar had correctly exercised their discretion in denying the late application to amend the statement of claim. Specifically, the court had to consider whether the delay and lack of justification provided by Herbertson warranted the refusal of leave to amend. The court also needed to determine whether the potential prejudice to Morton, the respondent, was significant enough to justify the denial of the amendment.

The court found that the registrar had not erred in their exercise of discretion. The delay in applying to amend the statement of claim was significant, and Herbertson had not provided adequate justification for the delay. The court concluded that the prejudice to Morton, including the disruption to the proceedings and the need to potentially prepare additional defences, was substantial. The court held that the registrar's decision was well within the bounds of reasonable discretion, and thus, the appeal was dismissed. The final orders confirmed the dismissal of the appeal.

Orders

Orders of the court

Appeal 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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