Jubilee Road Pty Ltd v STP (Gas) Retail Pty Ltd

[1999] WASC 60

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   JUBILEE ROAD PTY LTD -v- STP (GAS) RETAIL PTY LTD & ANOR [1999] WASC 60

CORAM:   MASTER BREDMEYER

HEARD:   4 JUNE 1999

DELIVERED          :   14 JUNE 1999

FILE NO/S:   CIV 2367 of 1996

BETWEEN:   JUBILEE ROAD PTY LTD

Plaintiff

AND

STP (GAS) RETAIL PTY LTD
First Defendant

EMAIL LTD
Second Defendant

Catchwords:

Applications to amend writ of summons and statement of claim

Legislation:

Limitation Act 1935 (WA)

Result:

Applications allowed

Representation:

Counsel:

Plaintiff:     Mr S Miller

First Defendant             :     Mr M J Feutrill

Second Defendant         :     Mr D M S Brash

Solicitors:

Plaintiff:     Lewis Blyth & Hooper

First Defendant             :     Cocks Macnish

Second Defendant         :     Phillips Fox

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

Morgan v Banning, unreported; FCt SCt of WA; Library No 990199; 2 April 1999

Case(s) also cited:

Briggs v Curtis Quick & Associates, unreported; FCt SCt of WA; Library No 980141; 30 March 1998

Sneade v Wotherton Barytes & Lead Mining Co Ltd [1904] 1 KB 295

1. MASTER BREDMEYER: This is an addendum to my judgment herein [1999] WASC 48 delivered on 4 June 1999. I heard argument on the orders which should be made followed by brief written submissions. On the plaintiff's application for leave to amend the writ of summons, I will make the following orders:

   1.The First Plaintiff do have leave to amend its writ of summons to add the Second Plaintiff.

   2.The Plaintiffs do have leave to amend the writ of summons in terms of the minute of amended writ of summons dated 1 April 1999 and filed herein as further amended by Master Bredmeyer on 4 June 1999.

   3.The amendment of the writ insofar as it concerns the Second Plaintiff is to have effect from the date hereof.

   4.Orders 1, 2 and 3 hereof are made without prejudice to the Defendants' right to plead the defence that they are not liable to the Plaintiffs for any claims for damages for breaches of the Trade Practices Act 1974 (Cth) pleaded in the Amended Statement of Claim or pleaded in any further amended statement(s) of claim filed and served in these proceedings by virtue of the limitation period(s) provided in the Trades Practices Act for the bringing of such claims.

   5.The Plaintiffs do file and serve the amended writ of summons within 7 days hereof.

   6.The Plaintiffs do pay the First Defendant's cost of the application in any event.

   7.Liberty to apply.

2. These orders will date from today.  In regard to order 4, I have made it as the plaintiff has consented to an order in that form.  However, I do not consider it was strictly necessary as the defendants have that right anyway.  Order 21 r5(5) is of limited application.  It does not override the provisions of the Limitation Act 1935 (WA).  To do so would be ultra vires the rule making power.  This is clearly explained in Morgan v Banning, unreported; FCt SCt of WA; Library No 990199; 2 April 1999.  I forgot to say it in my earlier judgment but I will say it now: I consider that the new causes of action pleaded by the first plaintiff against the defendants arise substantially out of the same facts as the old causes of action. 

3. With regard to the plaintiff's application for leave to amend the statement of claim I will make the following orders:

   1.The Plaintiffs do have leave to amend their statement of claim in terms of the minute of proposed amended statement of claim dated 4 May 1999 and filed herein as further amended by Master Bredmeyer on 4 June 1999 ('the Amended Statement of Claim').

   2.The Plaintiffs have leave to file and serve a further amended statement of claim which makes further amendments giving effect to the matters raised in Master Bredmeyer's reasons for decision dated 4 June 1999, insofar as they relate to paragraph 61 of the minute of proposed amended statement of claim dated 4 May 1999.

   3.Orders 1 and 2 hereof are made without prejudice to the Defendants' right to plead the defence that they are not liable to the Plaintiffs for any claims for damages for breaches of the Trades Practices Act 1974 (Cth) pleaded in the Amended Statement of Claim or pleaded in any further amended statement(s) of claim filed and served in these proceedings by virtue of the limitation period(s) provided in the Trades Practices Act for the bringing of such claims.

   4.The parties have liberty to apply.

   5.The plaintiff is to pay the defendants' costs thrown away in any event.

   6.Otherwise the plaintiff's and first defendant's costs of the application are in the cause.

4. The plaintiff consents to orders 1 to 5.  Regarding order 3, I make the same obiter comment made above that the reservation is not strictly necessary.  On 6, I realise that the plaintiff sought leave to amend the pleading and normally costs are awarded against a party seeking leave to amend.  On the other hand, the amendments were fiercely opposed by the first defendant and most of that opposition failed.  In a contested matter, costs normally follow the event, so on that principle costs of the contest should go to the plaintiff.  Weighing up those two competing principles I consider that the appropriate orders on those costs is as per order 6.

5. I will make orders 1 to 6 as stated herein dated as of today.