Hutcheson v KELARIS Pty Ltd - [2000] WADC 126

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: HUTCHESON & ANOR -v- KELARIS PTY LTD [2000] WADC 126

CORAM: COMMISSIONER REYNOLDS

HEARD: 28 APRIL 2000

DELIVERED : 25 MAY 2000

FILE NO/S: CIV 2807 of 1998

BETWEEN: ALAN JOHN HUTCHESON
JOAN HUTCHESON
Plaintiffs
AND
KELARIS PTY LTD
Defendant

Catchwords:

Appeal - Application to strike out statement of claim - Whether the pleadings disclose a cause of action - Order 20 r 19 Supreme Court Rules

Legislation:

Nil

Result:

Appeal upheld. Leave for plaintiff to file another statement of claim with liberty to apply to the defendant

Representation:

Counsel:

Plaintiffs: Ms J Pinnington
Defendant: Mr A C McIntosh

Solicitors:

Plaintiffs: Lawton Gillon
Defendant: Murie & Edward

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

Hart-Roach v Public Trustee, unreported; SCt of WA; Library No 980044; 11 February 1998
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Case(s) also cited:

Robinson & Ors v Adshead & Ors (No 2) (1995) 12 WAR 577
Kimberley Downs Pty Ltd & Ors v State of Western Australia & Anor, unreported; SCt of WA; Library No 6461; 25 August 1986
Packard v Transport Trading & Agency Company Ltd (1912) 14 WALR 191
General Steel Industries Inc v Commissioner For Railways (NSW) & Ors (1964) 112 CLR 125
Dalgety Australia Ltd & Anor v de Vahl Rubin & Ors, unreported FCt SCt of WA; Library No 5485; 24 August 1984
Pezzano v Hoffman & Anor [1999] WASC 231

COMMISSIONER REYNOLDS: This is an appeal against a decision of a Deputy Registrar dated 18 August 1999 by which he ordered that the plaintiffs have leave to file an amended substituted statement of claim. The order was made on the application by the defendant by way of chamber summons dated 29 October 1998 for an order that the plaintiffs' substituted statement of claim be struck out because it failed to disclose a cause of action.
The plaintiffs filed a writ of summons with a statement of claim on 29 July 1998. A memorandum of appearance was filed on 7 August 1998. On 20 August 1998 the defendant made an application by way of chamber summons seeking an order that the plaintiffs' claim be struck out because it failed to disclose a cause of action. On 16 October 1998 orders were made by consent on the defendant's application including orders that the plaintiffs file and serve a substituted statement of claim within seven days and that the defendant have leave within 21 days of the date of service to issue a fresh chamber summons pursuant to O 20 r 19 of the Rules of the Supreme Court of Western Australia ("RSC").
The plaintiffs' substituted statement of claim was filed on 16 October 1998. On 29 October 1998 the defendant applied for it to be struck out because it failed to disclose a cause of action. On 26 May 1999 a Deputy Registrar ordered inter alia that the plaintiffs file and serve a minute of…

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: [2000] WADC 126
Decision Date

CaseChat Overview and Summary

The case of Hutcheson v KELARIS Pty Ltd involved an appeal by the defendant, KELARIS Pty Ltd, against a decision of a Deputy Registrar who had granted leave to the plaintiffs, Alan John Hutcheson and Joan Hutcheson, to file an amended substituted statement of claim. The defendant had applied to have the plaintiffs' claim struck out on the basis that it failed to disclose a cause of action. The plaintiffs had purchased a property and alleged that the defendant, as their settlement agent, failed to advise them that there was no easement granting them access to water registered over certain parcels of land. The plaintiffs claimed that this failure resulted in them suffering loss and damage when the water supply to the property was disrupted. The legal issues before the court were whether the pleadings disclosed a cause of action against the defendant and whether the plaintiffs could establish a necessary link between the defendant's failure to advise them of the lack of an easement and the loss they suffered.

The court held that the pleadings as they stood did not disclose a cause of action against the defendant because they did not establish the necessary link between the defendant's failure and the plaintiffs' loss. The court found that the plaintiffs had not pleaded any material facts to support their claim that they could have withdrawn from the sale or insisted upon the registration of easements against the relevant land parcels. The court also noted that the plaintiffs had compromised their rights in a separate Supreme Court action against the owner of the land over which the disputed easement was supposed to run. The court decided to uphold the appeal and give the plaintiffs leave to file a further amended substituted statement of claim in an attempt to plead their case in a manner that would give rise to a cause of action. The defendant was given leave to file a fresh chamber summons to challenge the new statement of claim if it were to be filed. The court also invited the parties to provide submissions on the question of costs.

Orders