Jeffrey Maxwell Read v Diana Mary Burns (T/As Diana Burns Solicitors) and Prime Property Investment Pty Ltd and Sidney Knell
[2013] ACTSC 83
•10 May 2013
JEFFREY MAXWELL READ v DIANA MARY BURNS (T/AS DIANA BURNS SOLICITORS) AND PRIME PROPERTY INVESTMENT PTY LTD AND SIDNEY KNELL
[2013] ACTSC 83 (10 May 2013)
PRACTICE AND PROCEDURE – application for leave to amend statement of claim –
rr 502, 503 Court Procedures Rules 2006 (ACT) – whether actions statute barred – whether proposed amendments pleading a new cause of action – whether new actions arise out of same facts or substantially same facts as a cause of action for which relief has already been claimed by plaintiff – leave to amend in part
Law Society of the Australian Capital Territory v Burns [2012] ACTSC 91
Weldon v Neal (1887) 56 LJQB 621
Conveyancing Act1919 (NSW), s 66W
Court Procedures Rules2006 (ACT), rr 502, 503
Trade Practices Act1974 (Cth), ss 53, 75B
No. SC 350 of 2008
Judge: Burns J
Supreme Court of the ACT
Date: 10 May 2013
IN THE SUPREME COURT OF THE )
) No. SCC 350 of 2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: JEFFREY MAXWELL READ
Plaintiff
AND: DIANA MARY BURNS
(t/as DIANA BURNS SOLICITORS)
First Defendant
PRIME PROPERTY INVESTMENT PTY LTD (ACN 058 336 940)
Second Defendant
SIDNEY KNELL
Third Defendant
ORDER
Judge: Burns J
Date: 10 May 2013
Place: Canberra
THE COURT ORDERS THAT:
The plaintiff has leave to file and serve an Amended Statement of Claim consistent with these reasons within 14 days.
The plaintiff is to pay the first, second and third defendants’ costs of the application, but payment of those costs is deferred until the proceedings are concluded.
These proceedings have a regrettably lengthy and complex history. The plaintiff, Dr Read, is not presently legally represented. These proceedings are one of a number arising out of the same factual background. The remaining plaintiffs in the other proceedings are all legally represented, and recently their claims resolved at mediation. A similar course cannot be contemplated with respect to Dr Read’s claim until the present issues with his pleadings are resolved.
Dr Read’s claim, put simply and without any pretence at detailed accuracy, is that he suffered damage by reason of misleading or deceptive conduct engaged in by the second and third defendants in the sale to him of a unit in a property development in Sydney (the Waldorf South Sydney). The second defendant is a real estate agent who acted on behalf of the vendor/developer. The third defendant is a “principal” of the second defendant.
The first defendant was a lawyer practicing in the ACT, although her name was subsequently removed from the roll of practitioners by order of this Court: see Law Society of the Australian Capital Territory v Burns [2012] ACTSC 91. The first defendant acted on behalf of Dr Read in his purchase of the unit, and his entry into a management scheme for the unit (the Unit Management Agreement). Dr Read claims that a lawyer in the employ of the first defendant was negligent in his conduct of these transactions on his behalf.
These proceedings were commenced by an Originating Claim dated 1 May 2008. At that time Dr Read was legally represented. At that time, his claims with respect to the second and third defendants was pleaded as misrepresentations in the course of trade or commerce in breach of the provisions of the Trade Practices Act1974 (Cth). His claim against the first defendant was pleaded in negligence by:
(a)failing to advise the Plaintiff that the property could not be used or let as a permanent residence;
(b)failing to advise the Plaintiff that the property could be used only as a short term serviced apartment;
(c)failing to advise the Plaintiff that a third party had the exclusive right to manage the property as a serviced apartment;
(d)failing to advise the Plaintiff that, if he did not engage a particular third party to manage the property as a serviced apartment, he would be unable to use or derive any significant benefit from the property;
(e)failing to advise the Plaintiff that the same third party also had the exclusive right to manage the property comprised in Strata Plan 64972 with power to require the Owners Corporation to reimburse costs, charges and other expenses which it incurred including engagement of contractors together with any associated administrative charges.
Dr Read provided the following particulars of his loss or damage:
(a)Reduced value of the property as a serviced apartment compared with its value as a residential unit capable of being used or let as a permanent residence.
(b)Reduced income received by reason of utilising the property as a serviced apartment instead of letting the property as a permanent residence.
(c)Reduced income received by reason of engaging Waldorf Apartments Sydney South Pty Ltd as manager of the property as a serviced apartment.
(d)Additional costs incurred by reason of special levies imposed consequent on the exclusive rights granted to Rinbac Pty Ltd to require reimbursement of costs, charges and expenses in relation to management of the building of which the property was a unit.
On or about 17 July 2012, Dr Read, who was by then unrepresented, applied to this Court for leave to amend his Statement of Claim (SOC). This was followed on 14 August 2012 by him lodging an amended application to amend his SOC. The first occasion on which, to my knowledge, the possibility of Dr Read amending his SOC was raised was on 2 November 2011 in the course of the first directions hearing before me. By the next directions hearing on 5 December 2011 he was unrepresented. At the subsequent directions hearing on 2 April 2012 Dr Read, together with the other plaintiffs, were represented by a different firm of solicitors. Sometime thereafter Dr Read parted ways with these solicitors (and the other plaintiffs). Since that time Dr Read has not been legally represented. Subsequently, the claims of all the other plaintiffs have resolved at mediation.
On 18 June 2012, I ordered that Dr Read file and serve any applications to amend his SOC within one month. On 17 July 2012, Dr Read filed an application seeking leave to amend his SOC. This was followed on 14 August 2012 by the amended application. At the next directions hearing on 15 August 2012, I directed that he file and serve a draft Amended SOC by 17 August 2012. A draft Amended SOC was lodged with the Court on 17 August 2012.
The first, second and third defendants oppose the application by the plaintiff to amend his SOC on the grounds that the amendments plead new causes of action that are statute barred. The plaintiff disputes this submission, but in the alternative submits that the amendments should be allowed pursuant to r 503(4) of the Court Procedures Rules 2006 (ACT).
Rule 502 of the Court Procedures Rules 2006 (ACT) gives the Court the power to grant leave to a party to amend its process at any stage of a proceeding. However, any amendment must be such as to leave the amended pleading intelligible, in a legal sense. It must set out the essential facts upon which the party will rely, in such a way as to make apparent the cause of action pleaded, and how the pleaded facts relate to the cause of action.
In the ACT, the fact that proposed amendments to the SOC will raise new, and potentially statute barred, causes of action is not necessarily fatal to the application to amend. By virtue of the rule in Weldon v Neal (1887) 56 LJQB 621; 35 WR 820; 19 QB 395 such amendments were only allowed in “very peculiar circumstances”. The effect of the rule in Weldon v Neal was modified in the ACT by r 503 of the Court Procedures Rules2006:
503 Amendment–after limitation period
(1)This rule applies in relation to an application for leave in a proceeding to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.
NotePt 6.2 (Applications in proceedings) applies to an application for leave under this rule.
(2)The court may give leave to make an amendment correcting a mistake in the name or identity of a party, even if the effect of the amendment is to substitute a new party, only if –
(a)the court considers it appropriate; and
(b)the court is satisfied that the mistake sought to be corrected –
(i)was a genuine mistake; and
(ii)was not misleading or likely to cause any reasonable doubt about the identity of the person intending to sue or intended to be sued.
(3)The court may give leave to make an amendment changing the capacity in which a party sues, whether as plaintiff or counter-claiming defendant, only if –
(a)the court considers it appropriate; and
(b)the changed capacity in which the party would then sue is a capacity in which the party might have sued on the day the proceeding was started by the party.
(4)The court may give leave to make an amendment to include a new cause of action only if –
(a)the court considers it appropriate; and
(b)the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.
The issues raised by the plaintiff’s application, therefore, are:
a)Do any of the proposed amendments involve him pleading a new cause of action against any of the defendants?
b)If so, are such causes of action statute barred?
c)If so, does the new cause of action arise out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed by the plaintiff?
I have spent many hours reading and re-reading the draft Amended SOC, attempting to understand how it expresses a legally coherent claim against the defendants. In all likelihood I have spend too long on this task, which is, after all, only a pleading issue. I was, however, cognizant of the fact that Dr Read is not legally represented, and has no legal training and I wanted to ensure, to the extent that it was possible to do so, that Dr Read be given the opportunity to plead the case he wants to plead. The fact that I propose to allow Dr Read to make some of the amendments he proposes should not be seen as an indication that I consider the amendments to be appropriate. That is an issue I leave to Dr Read. I do, however, sound a word of warning: Dr Read runs the risk of costs penalties if he is unsuccessful in pursuing issues raised in these amendments, even if he succeeds in these proceedings.
THE PROPOSED AMENDMENTS CONCERNING THE FIRST DEFENDANT
I will start with the claim against the first defendant. As presently pleaded, the plaintiff’s claim against the first defendant is based on the following allegations:
a)the first defendant was a solicitor practicing in the Australian Capital Territory;
b)Ross Burns was a solicitor practicing in the ACT and working for the first defendant;
c)in or about January 2002 the plaintiff and first defendant entered into a retainer agreement for the first defendant to act for him in respect of his proposed purchase of real property at Chippendale, NSW.
d)that in the course of giving instructions to the first defendant pursuant to the retainer agreement, the plaintiff instructed that he wanted to be able to live in the property himself or rent it out;
e)the first defendant acted for the plaintiff on the purchase of the property;
f)the first defendant breached her duty of care to the plaintiff by:
(i)failing to advise the plaintiff that the property could not be used or let as a permanent residence;
(ii)failing to advise the plaintiff that the property could be used only as a short term serviced apartment;
(iv)failing to advise the plaintiff that, if he did not engage a particular third party to manage the property as a serviced apartment, he would be unable to use or derive any significant benefit from the property;
(v)failing to advise the plaintiff that the same third party also had the exclusive right to manage the property comprised in Strata Plan 64972 with power to require the Owners Corporation to reimburse costs, charges and other expenses which it incurred including engagement of contractors together with any associated administrative charges.
g)as a consequence of the first defendant’s negligence, the plaintiff purchased the property;
h)as a consequence the plaintiff suffered loss or damage, particularised as:
(i)Reduced value of the property as a serviced apartment compared with its value as a residential unit capable of being used or let as a permanent residence.
(ii)Reduced income received by reason of utilising the property as a serviced apartment instead of letting the property as a permanent residence.
(iii)Reduced income received by reason of engaging Waldorf Apartments Sydney South Pty Ltd as manager of the property of a serviced apartment.
(iv)Additional costs incurred by reason of special levies imposed consequent on the exclusive rights granted to Rinbac Pty Ltd to require reimbursement of costs, charges and expenses in relation to management of the building of which the property was a unit.
The proposed amendments modify this conventional claim in a number of ways. First, the plaintiff proposes to plead (paragraph 5B) that the first defendant had “first-hand knowledge of the managed investment provisions of the Corporations Law [sic] as they apply to serviced strata schemes including the requirement for Australian Securities Investment Commission (“ASIC”) approval and registration of serviced strata schemes where the units are not available for residential use”. He particularises the basis of the first defendant’s alleged knowledge as arising from her having acted as a solicitor for the second defendant in other such schemes. As I understand it, Dr Read seeks to pick up the matters pleaded in this paragraph in proposed amendments to paragraph 18 of the SOC, by adding as further particulars to the allegations of negligence, alleging that the first defendant was negligent in:
(i)failing to advise the plaintiff that the Waldorf properties and management scheme constituted a “serviced strata scheme” of a type that was subject to the managed investment provisions of Chapter 5C of the Corporations Law 2001 [sic];
(j)failing to advise the plaintiff that the Waldorf management scheme did not comply with the Corporations Law 2001 [sic] and that its non-compliance deprived him of statutory safeguards required to protect his interests from exploitation by Rinbac;
(k)failing to advise the plaintiff that he risked substantial burdens or detriments consequent on the Waldorf management arrangements being an illegal managed investment scheme in breach of s 601ED of the Corporations Act 2001 (Cth).
The proposed amendment introduces a new cause of action. In any event, it rises out of substantially the same facts as those currently pleaded by Dr Read. I will therefore allow proposed paragraph 5B and proposed sub-paragraphs 18(i), (j), (k) and (l).
Secondly, the plaintiff proposes inserting paragraphs 15A, 15B, 15C, 15D and 15E, all of which are relevant to his claim against the first defendant.
Proposed paragraph 15A alleges that in or about January 2002 the plaintiff and first defendant “agreed” that the first defendant would “address and resolve” a number of “specific instructions” the plaintiff “had given about the...purchase and management arrangements”. The particulars appended to the proposed paragraph do not make clear what “specific instructions” the plaintiff is referring to. My initial thought was that the paragraph may be introductory to the matters referred to in proposed paragraph 15B, but on the face of the pleadings that does not appear to be the case. While paragraph 15B refers to specific instructions by Dr Read that he required confirmation that “he would be able to take advantage of the management scheme and place reliance on the undertakings given in the prospectus document”, it refers to those instructions being given in the first week of April 2002, whereas paragraph 15A refers to instructions the plaintiff “had given” to the first defendant in or about January 2002 at the latest.
It is not easy to discern how the allegations made in paragraph 15A feed into the particulars of negligence pleaded in paragraph 18. Indeed, the vagueness of paragraph 15A makes this impossible. The application to insert paragraph 15A should be refused.
Paragraph 15B, as I have already noted, pleads that Dr Read required confirmation of the first defendant before settlement on the apartment that he would be able “to take advantage of the management scheme” and to rely on the “undertakings” in the prospectus document. I understand that by “undertakings” Dr Read means representations. It appears that paragraph 15B is intended to be read with paragraph 15C, which pleads that upon Dr Read receiving advice from the first defendant, he instructed the first defendant to proceed to settlement.
It appears to me that this is simply further particularisation, albeit inelegantly expressed, of Dr Read’s current claim against the first defendant in negligence. Even if I am wrong in that regard, the amendments should be allowed as arising out of substantially the same facts as those currently pleaded by Dr Read. I will allow paragraphs 15B and 15C.
Proposed paragraph 15D, alleges that the first defendant provided Dr Read with a certificate under s 66W of the Conveyancing Act1919 (NSW). On his own pleading, Dr Read accepts that such a certificate was irrelevant to the transaction he was undertaking. It may well reflect poorly on the first defendant that the certificate was forwarded to Dr Read, but it is not the basis of any claim in negligence. The paragraph should not be allowed.
Proposed paragraph 15E provides further particulars of the retainer between the plaintiff and the first defendant and can been seen either as stating further particulars or, if it raises a new cause of action, an action arising out of substantially the same facts as the plaintiff has already pleaded. Proposed paragraph 15E should be allowed.
Proposed paragraph 16A alleges that the first defendant owed Dr Read a duty of care (referred to as a “third party duty of care”) in providing advice to Sharon Lim and Susan Read, who also retained the first defendant to act on the purchase of units in the Waldorf South Sydney. In my opinion, Dr Read should not be allowed to plead this cause of action. First, the particulars pleaded in support of the supposed third party duty of care could not give rise to such a duty. Secondly, this is an entirely new cause of action, apparently statute barred, which does not arise out of the same, or substantially the same, facts as any presently pleaded cause of action.
Dr Read proposes to amend the existing paragraph 17 of the SOC by adding particulars of the present allegation that the first defendant acted for him on the purchase of the property. The provision of these further particulars does not raise any new cause of action, and accordingly the amendments should be allowed.
The next amendment proposed by Dr Read with respect to his claim against the first defendant is to insert a new paragraph 17A. It is convenient to consider this proposed amendment together with the proposed amendments to paragraph 13. In these proposed amendments Dr Read seeks to extend his claim from one alleging the first defendant simply acting for him on the purchase of the property, to one encompassing the first defendant also acting for him with respect to Dr Read entering into the Unit Management Agreement. This is a new cause of action, but I am satisfied it arises out of the same, or substantially the same, facts as his current cause of action. The parties are the same, and the two transactions occurred at the same time, and as part of the same set of instructions. The amendment to paragraph 13, and the insertion of paragraph 17A should be allowed.
Dr Read proposes to amend paragraph 18 (c) by providing particulars of the third party referred to in the present paragraph. This should be allowed.
He further seeks to amend paragraph 18 by adding additional particulars of the first defendant’s alleged breach of duty of care towards him. I have already allowed this amendment with respect to sub-paragraphs 18(i), (j), (k) and (l). The remaining proposed sub-paragraphs should also be allowed as either providing further particulars of the current cause of action, or, where they involve a new cause of action, as arising out of the same, or substantially the same, facts as the current cause of action.
The proposal to insert a new paragraph 18A should be refused, as it pertains to the alleged “third party duty of care” I have already rejected.
Proposed paragraphs 20A and 20B relate to a new allegation that as a consequence of the negligence of the first defendant, and by reason of his reliance on representation made by the second and third defendants, Dr Read entered into a home loan with the National Australia Bank to purchase the property. It is probable that this pleads a new cause of action, involving as it does an allegation of negligence of a different character to that currently pleaded. However, I am satisfied that it arises out of substantially the same facts as those currently pleaded by Dr Read, and should be allowed.
Proposed paragraph 20C is unobjectionable, and should be allowed.
Proposed paragraphs 21A and 21B plead that as a consequence of the negligence of the first defendant Dr Read entered into the Unit Management Agreement with Waldorf Apartments South Sydney Pty Ltd. I have already found that Dr Read should be entitled to raise as an allegation of breach of duty by the first defendant its failure to advise him regarding certain aspects of the Unit Management Agreement, so that it follows that he should be allowed to include paragraphs 21A and 21B.
Proposed paragraph 21C merely provides added particulars to the presently pleaded allegation that Dr Read paid the first defendant’s fee pursuant to the retainer agreement. It should be allowed.
Proposed paragraph 22A pleads that because of the first defendant’s negligence Sharon Lim agreed to purchase unit 208. It appears that this is a continuation of the claim Dr Read sought to make based upon the alleged “third party duty of care”. For the reasons I have already given, it should not be allowed.
Dr Read proposes amending paragraph 23 of the SOC to plead damage as a consequence of a breach of the first defendant’s duty, but the draft Amended SOC specifies the breach as that referred to in “paragraph 0A” of the draft Amended SOC. There is, of course, no such paragraph, but I presume that he intended to refer to proposed paragraph 18A, which, on my reading of the document, is the only paragraph besides paragraph 18 (already referred to in paragraph 23) alleging a breach of a duty of care by the first defendant. This was the alleged “third party duty of care”, which I have disallowed. It follows that the proposed reference to that duty of care in amendment to paragraph 23 should not be allowed.
Dr Read also proposes to add further particulars of loss to paragraph 23. The proposed sub-paragraphs 23(e), (f), (g), (h), (i), (j), (k) and (l) should be allowed as, at the least, they arise out of substantially the same facts as currently pleaded by Dr Read.
Summary of Allowed and Refused Amendments for the First Defendant
As regards the pleadings against the first defendant in the plaintiff’s statement of claim dated 17 August 2012, the amendments of or in paragraphs 5B, 13, 15B, 15C, 15E, 17, 17A, 18, 20A, 20B, 20C, 21A, 21B, 21C and 23(e)-(l) are allowed.
The amendments of or in paragraphs 15A, 15D, 16A, 18A, 22A and 23 (other than subparagraphs (e)-(l)) are refused.
THE PROPOSED AMENDMENTS CONCERNING THE SECOND AND THIRD DEFENDANTS
To this point, the case pleaded against the third defendant is that he is a principal of the second defendant, which engaged in trade or commerce as a real estate agent. Proposed paragraph 5A alleges that, at all relevant times, the third defendant engaged in trade or commerce as a mortgage broker. The proposed amendment should not be allowed. It leads nowhere, as the allegation that the third defendant engaged in trade or commerce as a mortgage broker is not referred to elsewhere in the proposed Amended SOC as a basis of any claim against him. In addition, it involves pleading a new cause of action which is statute barred, and in my opinion cannot be said to arise from the same, or substantially the same, facts as those currently pleaded.
Proposed paragraph 5B should be allowed, for the reasons I gave concerning its application to the first defendant.
Proposed paragraph 5C pleads that in 2001 the second defendant entered into an arrangement whereby it would act as vendor’s agent in the “promotion, marketing, financial advising and introducing” of investors into the Waldorf South Sydney Apartments. Paragraph 8 of the SOC, as currently pleaded, already raises the allegation that the second defendant made misleading or deceptive representations to Dr Read concerning the property. It appears to me that paragraph 5C does nothing more than plead further particulars, some, perhaps, unnecessary, of Dr Read’s claim that the second defendant made the alleged representations in the course of trade or commerce, and that it was authorised to make the representations. I would allow proposed paragraph 5C.
Proposed paragraph 5D pleads that the second defendant was an agent of Rinbac Pty Ltd. The particulars to the proposed paragraph refer to the second defendant’s Defence dated 27 November 2008, in which the second defendant pleaded that at all times it acted in good faith as agent of Rinbac Pty Ltd. On 14 January 2013, the second defendant filed an Amended Defence in which reference to Rinbac Pty Ltd is deleted, and pleads that the second defendant relied upon information provided by “FAI Property Services Pty Ltd, on behalf of the vendor”.
Dr Read has not sought to join Rinbac Pty Ltd as a defendant in these proceedings. The proposed paragraph takes his claim against the second and third defendants no further than his current pleadings, and, in any event, reference to Rinbac is made redundant by the amendment to the second defendant’s defence. The proposed amendment should be refused.
Proposed paragraph 5E is problematic. It alleges that in late 2001, the second defendant distributed a “promissory document” which described the main features of the “Waldorf serviced strata scheme” and included “promissory undertakings” about the benefits and returns purchasers would receive under that scheme. The “promissory document” is, apparently, referred to variously throughout the pleadings as “the Waldorf Disclosure Document”, “the Waldorf Prospectus” and “the Waldorf Collateral Contract”. The current pleadings in misrepresentation against the second defendant allege that the representations complained of were provided to Dr Read in a document handed to him. Dr Read has not abandoned that claim, as the proposed Amended SOC leaves the current paragraphs 6 and 7 untouched. In order to understand proposed paragraph 5E it is necessary to refer to some later proposed amendments to the SOC.
Proposed paragraph 7G alleges that Rinbac Pty Ltd is the manager of the Waldorf Management Scheme and that another company, Waldorf Apartments South Sydney Pty Ltd is its subcontractor acting as a letting agent. Proposed paragraph 7H then alleges that the “Waldorf Disclosure Document” is a “tripartite collateral contract...to the Waldorf Unit Management Agreement” between the second defendant, Waldorf Apartments South Sydney Pty Ltd and Dr Read. This, of course, is a different cause of action to that which is currently pleaded against the second defendant, which is a claim in pre-contractual misrepresentation. On the face of it, any such cause of action in contract is now statute barred. I am satisfied that Dr Read’s assertion that it is a “tripartite collateral contract”, involving an agreement not only between himself and the second defendant, but also involving Waldorf Apartments South Sydney Pty Ltd means that the proposed cause of action in contract does not arise out of the same, or substantially the same, facts as his current cause of action. His application to amend his SOC to plead an action in breach of contract should be refused. Consequently proposed paragraph 7H should be disallowed. It follows that proposed paragraphs 7I, 7J, 7K, and 7L must also be disallowed. Proposed paragraph 5E should be allowed as simply providing further particulars of the current cause of action in misrepresentation, except that the reference to “the Waldorf Collateral Contract” is to be excised.
Proposed paragraph 7A merely confirms that the document referred to in paragraph 5E as “the promissory document” is the same document referred to in the existing paragraph 7. As such, it should be allowed.
Proposed paragraphs 7B, 7C, 7D, 7E and 7F plead further alleged representations made to Dr Read by the second defendant. These should be seen as providing further particulars of his current claim or as arising out of substantially the same facts as his current claim. They will be allowed.
Proposed paragraph 7G should be disallowed as it was a preparatory paragraph to the disallowed contractual claim, and will serve no purpose after the disallowance of that proposed claim.
In proposed paragraphs 7M to 7U inclusive Dr Read seeks to plead a cause of action against the second defendant in negligence, alleging that the second defendant owed him, Susan Read and Sharon Lim a duty of care. Such a cause of action is apparently statute barred. It cannot be said to arise out of substantially the same facts as his current cause of action, as the proposed cause of action would inevitably require evidence of facts pertaining to the second defendant’s dealings with Susan Read and Sharon Lim, which forms no part of the cause currently pleaded by Dr Read. These amendments should not be allowed.
Proposed paragraph 7V is no longer necessary.
Dr Read proposes to amend paragraph 8 by adding two further particulars. These should be allowed.
In proposed paragraph 10A Dr Read alleges that the representations made in paragraph 8(e) were made in breach of s 53(aa) of the Trade Practices Act1974 (Cth). This arises out of the same facts as currently pleaded, and the amendment should be allowed.
Similarly, in proposed paragraph 10B Dr Read alleges that the representations referred to in paragraphs 8(h) and 8(i) were made in breach of s 53(g) of the Trade Practices Act1974 (Cth). This arises out of the same facts as his current pleadings, and the amendment should be allowed.
Proposed paragraph 11A alleges that the third defendant was, in terms of s 75B of the Trade Practices Act, involved in the making of representations by the second defendant. The draft Amended SOC has an error in proposed paragraph 11A. I understand the allegation to be that the third defendant was involved in the second defendant making the representations referred to in paragraphs 10A and 10B. If that is the case, then the amendment should be allowed.
For the reasons that I gave with respect to the first defendant, Dr Read’s amendment by virtue of a new paragraph 20A should also be allowed in its application to the second defendant.
Similarly, the insertion of paragraph 20C in its application to the second defendant should also be allowed.
Proposed paragraph 21A should be allowed in its application to the second defendant.
I have already ruled that proposed paragraph 22A is disallowed.
Proposed paragraph 22B should not be allowed. It seeks to raise issues concerning the third defendant’s dealings with “extended family” of Dr Read and a number of “other clients”. This is irrelevant to Dr Read’s claim.
Proposed paragraph 22C seeks to raise a claim for exemplary damages against the third defendant. This arises out of the same facts as currently pleaded and should be allowed, except that proposed particulars (c), (d), (e) and (f) will not be allowed as they are embarrassing. As such, proposed paragraph 22D should also be allowed.
With respect to paragraph 23 of the SOC, Dr Read’s proposed amendment alleging that he suffered loss by reason of “the breaches of the collateral contractual undertakings given by the Second Defendant referred to in paragraph 7J” should be refused.
I have already allowed Dr Read’s amendment by adding paragraphs (e), (f), (g), (h), (i), (j), (k) and (l) to paragraph 23 as against the first defendant, and they should also be allowed as against the second and third defendants.
The remaining amendments proposed with respect to Dr Read’s prayers for relief should also be allowed.
Summary of Allowed and Refused Amendments for the Second and Third Defendants
As regards the pleadings against the second and third defendants in the plaintiff’s statement of claim dated 17 August 2012, the amendments of or in paragraphs 5B, 5C, 5E, 7A, 7B, 7C, 7D, 7E, 7F, 8, 10A, 10B, 11A, 20A, 20C, 21A, 22C, 22D and 23(e)-(l) are allowed.
The amendments of or in paragraphs 5A, 5 D, 7 G to 7V inclusive, 22A, 22B and 23 (other than subparagraphs (e)-(l)) are refused.
ORDERS
Dr Read is given leave to file and serve an Amended Statement of Claim consistent with these reasons within 14 days.
He is to pay the first, second and third defendants’ costs of the application, but payment of those costs is deferred until the proceedings are concluded.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 10 May 2013
Counsel for the Plaintiff: The Plaintiff appeared in person
Counsel for the First Defendant: Mr G Weetman
Solicitor for the First Defendant: Boettcher Law
Counsel for the Second and Third Defendants: Mr M Baumann
Solicitor for the Second and Third Defendants: S & T Lawyers
Date of Hearing: 16 November 2012
Date of Judgment: 10 May 2013
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