Howlett v Hurburgh - [2004] TASSC 79

[2004] TASSC 79

CITATION: Howlett v Hurburgh [2004] TASSC 79

PARTIES:  HOWLETT, Colin Horace
  HOWLETT, Roslyn Gladys
  t/as C H & R G HOWLETT

v
HURBURGH, Joan Helen
HURBURGH, Donald
CONTAS PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1169/1987
DELIVERED ON:  6 August 2004
DELIVERED AT:  Hobart
HEARING DATES:  4 August 2004
JUDGMENT OF:  Evans J

CATCHWORDS:

Procedure – Supreme Court procedure - Tasmania – Practice under Rules of Court – Amendments – Statement of claim – Amendment introducing statute barred cause of action - Exercise of Court's discretion – Not appropriate in the circumstances.

Weldon v Neal (1987) 19 QBD 394; Ritchie & Parker Alfred Green & Co v Gornalle [2000] TASSC; Agtrack (NT) Pty Ltd v Hatfield [2003] 7 VR 63, referred to.
Supreme Court Rules 2000 (Tas), r427.
Aust Dig Procedure [276]

REPRESENTATION:

Counsel:
             Plaintiffs:  D J Porter QC
             First and Second Named Defendants:        P G J Zeeman
             Third Named Defendant:  D R Wallace
Solicitors:
             Plaintiffs:  Avery Partners
             First and Second Named Defendants:        Murdoch Clarke
             Third Named Defendant:  Wallace Wilkinson & Webster

Judgment Number: [2004] TASSC 79
Number of Paragraphs: 9

Serial No 79/2004
File No 1169/1987

COLIN HORACE HOWLETT and ROSLYN GLADYS HOWLETT
t/as C H & R G HOWLETT v JOAN HELEN HURBURGH,
DONALD HURBURGH and CONTAS PTY LTD

REASONS FOR JUDGMENT EVANS J

6 August 2004

The plaintiffs apply for leave to amend their statement of claim. The application is opposed insofar as it involves the insertion of the following paragraphs which would, in summary, add a claim for interest at 18 per cent, compounded half yearly, on the amount found to be due to the plaintiffs on their claim against the defendants for payment for work done and materials supplied in 1987. The paragraphs are:

"18It was an express term of the contract that progress payments would he made in three separate claims and payment would be made within 7 days of the receipt of an approved claim.
19By clause 42.1 of AS 2124, it was an express term of the contract that within 28 days after receipt by the Superintendent of the claim for payment, or within 14 days of issue by the Superintendent of the Superintendent's payment certificate whichever is the earlier, the Defendants would pay to the Plaintiffs the amount due to the Plaintiffs.
20By clause 42.9 of AS 2124, it was an express term of the contract as follows:
'if any moneys due to either party remain unpaid after the date upon which or the expiration of the period within which they should have been paid then interest shall be payable thereon from but excluding the date upon which or the expiration of the period within which they should have been paid to and including the date upon which the moneys are paid. The rate of interest shall be the rate prescribed in the Annexure and if no rate is prescribed the rate shall be 18 percent per annum. Interest…

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: [2004] TASSC 79
Decision Date: 6 August 2004

CaseChat Overview and Summary

In the case of Howlett v Hurburgh, the matter was heard in the Supreme Court of Tasmania. The dispute between the parties centred around the ability to amend a statement of claim to introduce a cause of action that was statute barred at the time of the amendment. The plaintiff, Howlett, sought to amend the statement of claim to include a cause of action that was no longer available due to the passage of time. The defendant, Hurburgh, opposed the amendment on the basis that it was not appropriate to exercise the court's discretion in this instance.

The primary legal issue that the court had to determine was whether it was appropriate to exercise the court's discretion under the Rules of Court to allow the plaintiff to amend the statement of claim by introducing a cause of action that was statute barred. The court needed to consider whether the amendment was in the interests of justice and whether it would be just and convenient to permit the amendment. The court also had to take into account the impact of the proposed amendment on the defendant and the potential for causing prejudice or unfairness.

In its decision, the court found that it was not appropriate to exercise the court's discretion to allow the amendment in this instance. The court held that the amendment would not be in the interests of justice as it would permit the plaintiff to pursue a cause of action that was no longer available due to the statute of limitations. The court also noted that the defendant would be prejudiced by the amendment as it would be required to defend a claim that was no longer legally viable. The court further held that it was not just and convenient to permit the amendment given the circumstances of the case.

As a result of the court's decision, the plaintiff's application to amend the statement of claim was dismissed. The court's decision emphasised the importance of considering the broader implications of exercising the court's discretion to allow amendments to statements of claim, particularly where the proposed amendment seeks to introduce a cause of action that is statute barred. The court's ruling highlights the need for parties to carefully consider the timing and content of their pleadings to avoid potential issues with amendments to statements of claim.

Orders