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…

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.

Continue reading Jo v Fudlovski

Details

AGLC: Jo v Fudlovski [2001] WADC 266
Case: [2001] WADC 266
Decision Date

CaseChat Overview and Summary

In the District Court of Western Australia, Jimmy Jo, the plaintiff, filed a case against Nick Fudlovski and Bluechip Enterprises Pty Ltd, the defendants. The plaintiff's claim was that the defendants breached their agreement to manufacture a door frame making machine within a reasonable time. The plaintiff's claim was unsuccessful, and judgment was entered for the defendants. The defendants counterclaim was not litigated at the trial, and the issues raised in the counterclaim were left for another day.
The defendants filed a notice of motion 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. The order allowed the plaintiff to assert that the door frame making machine was not of acceptable or commercial quality. The defendants argued that the plaintiff's attempt to re-open the question of the quality and performance of the machine would be the effect of allowing an amendment in the terms of par 3 of the amended defence to counterclaim dated 24 March 2000.
The court held that the plaintiff did not give instructions to make a concession that the machine produced an acceptable product and that he did not know that any such concession had been made. The court found that the plaintiff had the burden of proof and that it may be somewhat difficult to discharge. The court concluded that in light of the clear concessions made by counsel during the trial in the presence of the plaintiff, and in light of the finding that it was common ground between the parties that the machine was capable of producing acceptable product, the Court should be slow indeed to permit a person in the situation of the plaintiff to withdraw that concession. The court allowed the appeal and set aside the order made by the Deputy Registrar. The court ordered that 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 and that the plaintiff pay the defendant's costs of this application to be taxed.

Orders