Jo v Fudlovski - [2001] WADC 266

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: JO -v- FUDLOVSKI & ANOR [2001] WADC 266

CORAM: FENBURY DCJ

HEARD: 7 NOVEMBER 2001

DELIVERED : 26 NOVEMBER 2001

FILE NO/S: CIV 489 of 1998

BETWEEN: JIMMY JO
Plaintiff
AND
NICK FUDLOVSKI
First Defendant
BLUECHIP ENTERPRISES PTY LTD T/AS NIX SHEET METAL ENGINEERING (ACN 050 218 794)
Second Defendant

Catchwords:

Appeal from decision of Deputy Registrar permitting amendment of defence to counterclaim seeking to raise an issue conceded in trial of plaintiff's claim - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff:     No appearance
First Defendant             :     Mr P T Arns
Second Defendant         :     Mr P T Arns

Solicitors:

Plaintiff:     No appearance
First Defendant             :     Arns & Associates
Second Defendant         :     Arns & Associates

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

Jimmy Jo v Fudlovski & Anor [1999] WADC 12

Case(s) also cited:

Henderson v Henderson (1843) 3 HARE 100
Jo v Fudlovski & Anor [2001] WASCA 167
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R v Balfour; ex parte Parkes Rural Distributions Pty Ltd (1987) 76 ALR 256
Tony Sadler Pty Ltd & Ors v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269

FENBURY DCJ: This matter involves a notice of motion filed on behalf of the First and Second Defendants seeking that an order made by a Deputy Registrar of this Court on 28 April 2000 whereby he granted leave to the plaintiff to amend its defence to counterclaim be set aside and in its place there be orders that the plaintiff only have leave to amend its defence to counterclaim in terms of par 1 and par 2 of the amended defence to counterclaim.
There was no appearance on behalf of the plaintiff at the hearing. Indeed the plaintiff has never appeared either in person or by counsel in respect of this notice of motion. I was advised by Mr James Chong, who successfully obtained leave at the hearing of the Notice of Motion to withdraw from the record as solicitors for the plaintiff, that he understood the plaintiff had left the jurisdiction. Notice of these proceedings together with a summary of the submissions advanced on behalf of the defendants was left at the plaintiff’s last known address on 1 November 2001. In the circumstances I was prepared to proceed in the absence of the plaintiff.
There was a substantive trial in this matter the reasons for decision in which were handed down on 30 July 1999 (Jimmy Jo v Fudlovski & Anor [1999] WADC 12). I was the trial Judge and have a good recollection of the trial. I have also re-read relevant documents including the judgment.
These proceedings involve an appeal against the decision of the Deputy Registrar whereby he allowed an application by the plaintiff to amend his defence to counterclaim. The effect of the amendment was that the plaintiff wished to assert that the door frame making machine the subject of the trial was not of acceptable or commercial quality. The action involved a claim by the plaintiff that the defendants had breached their agreement to manufacture a door frame making machine in that they failed to do so within a reasonable time. The plaintiff's claim was unsuccessful in that regard and judgment was entered for the defendants.
The defendants counterclaim was not litigated at the trial, all parties being content to leave the issues raised in the counterclaim to another day.
However the question of whether the machine was ever completed and whether it was useful was an issue dealt with during the hearing.
At par 91 of the reasons for decision I stated:
"It was common ground between the parties that the machine had been completed and was capable of producing acceptable product. The court was advised by counsel that it was no longer in dispute that the rolling mill machine was of acceptable design and of merchantable quality. The alleged breach relied on by the plaintiff was delay in performance."
Furthermore, at p 10 of the transcript, counsel for the plaintiff Ms Richardson stated:
"The plaintiff has no difficulty with the fact that it (the machine) may be able to produce an acceptable product."
I am advised, and I accept, that upon the basis of these concessions no evidence was adduced on behalf of the first or second defendants to establish that the machine was of merchantable quality and capable of producing acceptable product. Indeed expert witnesses on behalf of the defendants had been marshalled and were ready and able to give evidence touching upon this issue but they were never called because of the concession made on behalf of the plaintiff.
The nub of the appeal brought on behalf of the defendants is to the effect that what the plaintiff wishes to do is re-open the question of the quality and performance of the machine the defendants constructed. This, counsel for the defendants submits, will be the effect of allowing an amendment in the terms of par 3 of the amended defence to counterclaim dated 24 March 2000. In passing I was informed that there was no objection to, and in fact consent had been given, to the amendments proposed in par 2 of that document.
Paragraph 3 of the proposed amended defence to counterclaim is in the following terms:
"The plaintiff says that the second defendant did not in any event sustain any compensable damages in that the second defendant would not have recouped the costs arrived at pursuant to par 2 above by reason that:
(a)The Mill was not at the time the plaintiff has been found to have repudiated the agreement nor at the time of the trial of the plaintiff's claim nor at any material time subsequent thereto able to reach a standard of consistent production capability. As a result the Mill cannot be operated commercially such that the second defendant would have been able thereby to recoup the costs of manufacture of the Mill.
(b)Alternatively to par 3(a) the market for product produced by the Mill was at the material time being the first half of 1998 when the Mill might reasonably have been put into operation had the contract been completed, not such that the second defendant would have been able to recoup the costs expended on the Mill pursuant to an attempt to operate the Mill commercially."
It can be seen that par 3(a) raises the issue of the quality of the machine and its capability but that par 3(b) raises the issue of the market for product.
The basis for the assertion on behalf of the plaintiff that he should not be held to the consequences of the concessions made by his counsel at trial is contained in his affidavit of 18 April 2000 and particularly at the following paragraphs:
"5.I did not give my previous counsel at the hearing of the trial of this action instructions to make a concession that the machine produced an acceptable product or any similar concession. I did not know that any such concession had been made.
…
8.My spoken and written English is limited. I was present in court. I was not aware that any concession had been made by my counsel as to whether the machine operated adequately.
9.I did not instruct my previous counsel to concede that the machine produced an acceptable product, nor was David Newton's evidence that the machine had been completed.
10.In any event the concession made by my counsel at trial does not amount to an admission that the machine is able continuously and reliable to produce an acceptable product such that it may be operated successfully on a commercial basis." (sic)
There is a difficulty, of course, in that the plaintiff did not attend the hearing of this motion and neither gave evidence in respect to what he said on affidavit or made himself available for cross examination. The degree of the plaintiff's fluency and understanding of English was touched upon during the trial. In par 5 of the reasons it is stated:
"The plaintiff is a business man of Chinese origin who normally lives in Jakarta Indonesia where he owns a plastics manufacturing business. The plaintiff gave his evidence through an interpreter although it was obvious that he had some understanding of English. He had conducted all of his business dealing with the first defendant without interpreted assistance."
The issue was again dealt with at par 16 and then at par 17 the finding was made that:
"… the parties were able to communicate adequately and the plaintiff understood major aspects of the enterprise …"
There is of course a difference between conducting business negotiations relating to a joint venture for the construction of a piece of machinery and being familiar with every phrase one's barrister is uttering in the course of submissions during a trial. However the difficulty is the plaintiff has failed to appear to speak to his assertion that he was not aware of the concessions made by his own counsel in his presence in court. The plaintiff has the burden of proof and, considering the nature of the issue and the circumstances I think it is a burden which may be somewhat difficult to discharge.
Put simply, in the light of the clear concessions made by counsel during the trial in the presence of the plaintiff, and in the light of the finding that it was common ground between the parties that the machine was capable of producing acceptable product then the Court should be slow indeed to permit a person in the situation of the plaintiff to withdraw that concession. That is especially so in circumstances where the defendants will be significantly prejudiced.
I make the following orders:
1.The plaintiff have leave to amend the defence to counterclaim in terms of par 2 and par 3(b) of the Amended Defence to Counterclaim dated 24 March 2000.
2.The plaintiff do pay the defendant's costs of this application to be taxed.
3.There be liberty to apply.