Joyce v Palassis - [2008] WASCA 151

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: JOYCE -v- PALASSIS [2008] WASCA 151

CORAM: PULLIN JA
BUSS JA

HEARD: 1 JULY 2008

DELIVERED : 21 JULY 2008

FILE NO/S: CACV 38 of 2008

BETWEEN: NEIL KEVIN JOYCE
KEITH GRAEME LINGARD
NICK CHRISTOU
First Appellants
STANTON PARTNERS (A FIRM)
Second Appellant
AND
STAN MICHAEL PALASSIS
First Respondent
CHATTOCK HOLDINGS PTY LTD (ACN 009 357 895)
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :LE MIERE J
Citation  :JOYCE -v- PALASSIS [No 4] [2008] WASC 45
File No  :CIV 2134 of 1998

Catchwords:

Interlocutory appeal - Application to amend statement of claim - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Appellants            :     Mr D M Stone
Second Appellant          :     Mr D M Stone
First Respondent           :     Mr D H Solomon
Second Respondent       :     Mr D H Solomon

Solicitors:

First Appellants            :     Williams & Hughes
Second Appellant          :     Williams & Hughes
First Respondent           :     Solomon Brothers
Second Respondent       :     Solomon Brothers

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

Breen v Williams (1996) 186 CLR 71
Chan v Zacharia (1984) 154 CLR 178
Clay v Clay [2001] HCA 9; (2001) 202 CLR 410
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Pilmer v Duke Group Ltd (in liq) [2001] HCA 31; (2001) 207 CLR 165
Securities and Exchange Commission v Chenery Corporation (1943) 318 US 80
Wilson v Metaxas [1989] WAR 285

PULLIN JA: This is an interlocutory appeal against the judgment of Le Miere J who refused the appellants leave to amend a statement of claim.
The statement of claim reveals that the first respondent (Mr Palassis) was in partnership with the first appellants, operating an accountancy firm called Stanton Partners. Mr Palassis was also the managing partner of Stanton Partners and he had an interest in the second respondent (Chattock) which owned an office building in Ord Street, West Perth. Palassis on behalf of Chattock, put a proposal (made an offer) to his partners concerning occupancy of the Ord Street property. Details are set out below. The appellants say that they and Mr Palassis orally agreed (accepted) the proposal, that there was then an Agreement for Lease between Chattock and Stanton Partners, that on 7 February 1993 Stanton Partners entered into occupation of the premises and commenced paying rent. Mr Palassis and the appellants fell out in 1997 and they have been engaged in various pieces of litigation for most of the time since then.
On 10 November 2000 the first appellants and Mr Palassis executed a deed of settlement and release which resulted in the settlement of two other actions and the settlement of the action the subject of this appeal 'excluding the Surviving Claims as defined in clause 6.1'.
Clause 6.1 of the deed read:
The Surviving Claims are the claims by LCJ [first appellants] in Supreme Court proceedings CIV…

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 Joyce v Palassis

Details

AGLC: Joyce v Palassis [2008] WASCA 151
Case: [2008] WASCA 151
Decision Date: 21 JULY 2008

CaseChat Overview and Summary

In the matter of Joyce v Palassis, the plaintiff sought to amend their statement of claim to include a new cause of action for deceit. The matter was heard in the Supreme Court of Victoria. The plaintiff argued that the addition of this cause of action would not prejudice the defendant, and that there were no substantial delays or other factors that would weigh against the amendment being allowed.

The primary legal issue before the court was whether the plaintiff was entitled to amend their statement of claim to include a new cause of action. The court had to consider the principles governing amendments to pleadings and whether the proposed amendment would prejudice the defendant or cause substantial delay. The court also needed to determine if there were exceptional circumstances that would warrant permitting the amendment despite potential prejudice or delay.

The court found that the proposed amendment would cause significant prejudice to the defendant, as it would require the defendant to defend a new cause of action that had not been previously disclosed. The court held that the prejudice to the defendant outweighed any potential benefit to the plaintiff in adding the new cause of action. Additionally, the court found that there were no exceptional circumstances that would justify permitting the amendment. As a result, the court dismissed the plaintiff's application to amend the statement of claim. The appeal was dismissed with no orders made in favour of the plaintiff.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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