Keene v SJ Weir P/L

[2017] SASCFC 76

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

KEENE v SJ WEIR P/L & ANOR

[2017] SASCFC 76

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)

3 July 2017

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK - GENERAL

Application for permission to appeal against an interlocutory judgment of a single Judge of this Court.

The applicant was the defendant in proceedings instituted by SJ Weir Pty Ltd seeking payment of the balance of the contract price for the construction of a house, for variations in the scope of work, and for prolongation.  The applicant denied liability, counterclaimed against SJ Weir and issued a third party claim against Tridente Architects.  The applicant sought permission to amend the third party statement of claim to plead further claims against Tridente Architects.  The application was dismissed by a Master.  On appeal to a single Judge of this Court, the applicant was granted permission to amend in respect of one claim, but the application to amend in respect of two claims relating to stone tiles and linished steel was dismissed.

Held:

1. Permission to appeal granted.

Supreme Court Civil Rules 2006 (SA) r 280, r 288, r 290; Development Act 1993 (SA) s 72; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 8; Limitation of Actions Act 1936 (SA) s 48, referred to.

KEENE v SJ WEIR P/L & ANOR
[2017] SASCFC 76

Full Court:  Kourakis CJ, Stanley and Bampton JJ

1. THE COURT:      The defendant, Gregory Charles Reeves Keene (“Keene”), applies for permission to appeal against an interlocutory judgment given by a Judge of this Court pursuant to r 288(1)(a)(iii) of the Supreme Court Civil Rules 2006 (SA) (“the Rules”).  In accordance with r 290(5), the application for permission in the notice of appeal dated 11 May 2017 is referred to the Full Court. 

2. In 2009 Keene contracted with the plaintiff, SJ Weir Pty Ltd (“SJ Weir”), to construct a house at Semaphore Park.  SJ Weir commenced proceedings in SCCIV‑09-1853 against Keene seeking payment of the balance of the contract price, for variations in the scope of work and for prolongation.  SJ Weir also pleaded that Keene is liable directly or indirectly because of the conduct of the architect, Tridente Architects Pty Ltd (“Tridente”). 

3. Keene denied that he is liable to SJ Weir, counterclaimed against SJ Weir alleging loss because of delays and defective work by SJ Weir and issued a third party claim against Tridente claiming damages in the event that he is found liable to SJ Weir because of Tridente’s conduct. The defective work alleged against SJ Weir included defective stone tiles and defective linished steel.

4. On 7 June 2016 Keene applied for permission to amend the third party statement of claim to plead three further claims against Tridente, two of which related to the stone tiles and the linished steel.  On 28 October 2016 a Master dismissed Keene’s application and Keene appealed to a single Judge.

5. On 20 April 2017 a single Judge allowed Keene’s appeal in respect of one of the proposed claims but dismissed it in respect of the proposed claims relating to the stone tiles and linished steel.   Keene’s proposed appeal is against the refusal of permission to amend in respect of the stone tiles and linished steel.

6. In the meantime, on 12 July 2016 SJ Weir had applied for permission to amend its defence to counterclaim and Scott Schedule to plead, in the alternative to its denial of liability in respect of the stone tiles and linished steel, proportionate liability in reliance upon s 72 of the Development Act 1993 (SA) or in the alternative s 8 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) by reason of an asserted liability of Tridente in respect of the stone tiles and linished steel. On 16 May 2017 a Master refused permission to amend and on 6 June 2017 SJ Weir appealed as of right to a single Judge against that refusal.

7. The proceedings in SCCIV-09-1853 have now been referred to the Special Classification List for pre-trial management.  The Judge managing the proceedings has referred the appeal by SJ Weir to the Full Court for determination pursuant to r 280(2) of the Rules.

8. Following the Master’s dismissal of his application to amend the third party statement of claim, Keene issued a summons and statement of claim in Supreme Court Action SCCIV-16-1477 on 17 November 2016 pleading the two claims that the Master, on 28 October 2016, refused Keene permission to plead in SCCIV‑09‑1853 and seeking an extension of time to institute the action pursuant to s 48 of the Limitation of Actions Act 1936 (SA). Keene obtained an order on 10 May 2017 that the period for service of that action be extended until 17 November 2017 on the ground that he is the defendant in the proceedings in SCCIV-09-1853 “which address matters arising out of the same factual context as set out in the statement of claim in” SCCIV-16-1477.[1]  Keene disclosed the existence of this action to Tridente and to the single Judge who heard the appeal against the Master’s refusal.

   [1]    SCCIV-16-1477, FDN 5, Order extending time for service, 19 May 2017.

9. Having considered Keene’s summary of argument filed 25 May 2017 and noting that there is a close connection between SJ Weir’s appeal and this proposed appeal, we consider that the proposed appeal is reasonably arguable and is of sufficient substance to justify consideration by the Full Court.  We grant permission to appeal pursuant to r 290(6) of the Rules.