Howlett v Hurburgh - [2002] TASSC 42

[2002] TASSC 42

CITATION: Howlett v Hurburgh [2002] TASSC 42

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:  5 July 2002
DELIVERED AT:  Launceston
HEARING DATE/S:  22 April 2002
JUDGMENT OF:  Crawford J

CATCHWORDS:

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Amendments - Statement of claim - Whether amendment introduced statute-barred cause of action.
Weldon v Neal (1887) 19 QBD 394, applied.
Aust Dig Procedure [276]

REPRESENTATION:

Counsel:
           Plaintiffs/Applicants:  J W Avery
           Defendants/Respondents:  D R Wallace
Solicitors:
           Plaintiffs/Applicants:  Avery Partners
           Defendants/Respondents:  Wallace Wilkinson & Webster

Judgment ID Number: [2002] TASSC 42
Number of paragraphs: 14

Serial No 42/2002
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 CRAWFORD J
5 July 2002

The plaintiffs applied for leave to amend their already amended statement of claim, by adding a claim for interest pursuant to the contract under which they had sued for work done and materials supplied.

A brief history of the pleadings is as follows. The action was commenced by writ filed on 8 September 1987. At that time only the second and third defendants were named as defendants. Annexed to the writ was a statement of claim. It pleaded that on 12 March 1987 the plaintiffs agreed with the second and third defendants to carry out work at a subdivision for an agreed price of $92,538. It was a condition of the agreement that it would be varied in the event of variations to the work being requested by the second and third defendants and carried out by the plaintiffs. The plaintiffs claimed $39,621, being for the following:

Agreed contract sum	$92,538
Add amount for cost of variations	37,864
$130,402
Less deductions for variations	1,781
$128,621
Less paid by defendants	89,000
Balance due	$39,621

The 11 paragraphs of the statement of claim made no mention of interest. However, the relief sought at the end of the statement of claim was in these terms:

"And the plaintiff claims the sum of $39,621.00 together with interest thereon at the rate prescribed under the Supreme Court Civil Procedure Act 1965 [sic] and Costs."

The interest claim was not asserted as being made pursuant to any clause in the contract but under the Act (of 1932, not 1965). It provided in s34(1) that upon all debts or sums certain recovered in any action the jury, or if there was no jury, the judge, might allow interest to the party recovering such debt or sum at a prescribed rate from the time when such debt or sum was payable if payable by virtue of some written instrument and at a date or time certain or, if payable otherwise, then from the time when demand of payment…

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: [2002] TASSC 42
Decision Date: 5 July 2002

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Colin Horace Howlett and Roslyn Gladys Howlett, trading as C H & R G Howlett, sued Joan Helen Hurburgh, Donald Hurburgh, and Contas Pty Ltd. The plaintiffs sought payment for work done and materials supplied under a contract, along with interest. The defendants denied liability or sought a reduction in the amount claimed. The plaintiffs applied to amend their statement of claim to include a claim for interest under the contract, which they had not previously pleaded.

The legal issues before the court were whether the plaintiffs' proposed amendment introduced a new cause of action barred by the statute of limitations, and whether it should be allowed in the exercise of the court's discretion. The plaintiffs argued that the amendment was not barred by the rule in Weldon v Neal, as it did not introduce a new cause of action in the technical sense. The defendants argued that the amendment introduced a new cause of action and was barred by the statute of limitations, and that the court should exercise its discretion to refuse the amendment.

The court held that the amendment would introduce a new cause of action in the technical sense, as defined in Susan Campbell's article "Amendments and Limitations: The Rule in Weldon v Neal." The court also held that the amendment was barred by the statute of limitations, as the cause of action arose more than six years before the application to amend. The court considered the exercise of its discretion to allow the amendment, but held that it would be unjust to allow the amendment as it would require the defendants to face a claim for interest at a rate that was reasonable at the time of the contract but not today. The application to amend was dismissed.

Orders