Keene v SJ Weir Pty Ltd - [2017] SASC 59

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
KEENE v SJ WEIR PTY LTD & ANOR
[2017] SASC 59
Judgment of The Honourable Justice Kelly
20 April 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - FAILURE TO EXERCISE DISCRETION
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON DOCUMENTARY EVIDENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - OTHER MATTERS
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK - GENERAL
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS
Appeal from a decision of a Master on 28 October 2016 refusing an application by the appellant, Gregory Charles Reeves Keene, to file an amended third party statement of claim. The appellant complains that the Master erred in the exercise of her discretion in refusing the application.
The action arises out of a building dispute between the appellant and the first respondent, SJ Weir Pty Ltd, after Weir built a house for the appellant in the mid-2000s. In 2009, following completion of the house, Weir commenced a claim for damages from the appellant for breach of contract. The appellant denied the claim and filed a counterclaim against Weir for damages for defective work. The appellant also commenced a third party claim for damages against the second respondent, Tridente Architects Pty Ltd, for breach of contract in the eventuality that the appellant is found to be liable to Weir. Tridente then cross-claimed against the appellant for unpaid fees owing to Tridente.
The appellant appeals in relation to the refusal by the Master to allow three distinct proposed amendments he seeks to make to the third party statement of claim, described respectively as the stone tiles defect (ground 3.2), the linished steel defect (ground 3.3) and the glass balustrade defect (ground 3.4).
Held partially allowing the appeal:
1.       The appellant has not demonstrated any error in the exercise of the discretion with respect to the stone tiles defect or the linished steel defect.
2.       As to ground 3.4 permission is granted to the appellant to amend the third party statement of claim in relation to the glass balustrade defect.
3.       The appeal in respect of all other grounds is dismissed.
House v The King (1936) 55 CLR 499; Channel Seven Adelaide Pty Ltd v Manock (2010) 273 LSJS 70, applied.

KEENE v SJ WEIR PTY LTD & ANOR
[2017] SASC 59
Appeal from a Master
KELLY J.
Introduction

This is an appeal against the decision of a Master on 28 October 2016 refusing an application by the appellant, Gregory Charles Reeves Keene (Keene), to file an amended third party statement of claim.
Keene contends that the Master…

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.

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Details

Case: [2017] SASC 59
Decision Date: 20 April 2017

CaseChat Overview and Summary

In the case of Keene v SJ Weir Pty Ltd, the dispute arose out of a building contract between the appellant, Keene, and the respondent, SJ Weir Pty Ltd, for the construction of a house. After practical completion of the construction in April 2008, Weir initiated a claim for damages against Keene, alleging breach of contract. Keene denied Weir's claim and filed a counterclaim against Weir for defective work, as well as a third party claim against the architect, Tridente Architects Pty Ltd, for breach of contract in the event Keene was found liable to Weir. Tridente, in turn, cross-claimed against Keene for unpaid fees. Keene subsequently sought to amend the third party statement of claim to include three new defects: the stone tiles defect, the linished steel defect, and the glass balustrade defect. The Master refused the application, finding that the amendments were not justified and would result in significant further delay and cost.

The primary legal issues before the court were whether the Master had exercised her discretion appropriately in refusing Keene's application to amend the pleadings and whether the findings of fact made by the Master were correct. The court considered whether there had been any interference with the exercise of the Master's discretion, particularly in light of the principles outlined in House v R.[1] The court also examined whether the findings of fact made by the Master were based on documentary evidence and whether there were any errors in the interpretation or construction of the contract. Furthermore, the court assessed whether the procedural history and the circumstances surrounding the proposed amendments warranted the refusal of the application.

The court found that the Master had exercised her discretion appropriately in refusing Keene's application to amend the pleadings. The Master had carefully considered the procedural history and the reasons for the delay in filing the application, and concluded that there was no adequate explanation for the delay and that the proposed amendments would have significant consequences in terms of further delay and cost. The court held that the findings of fact made by the Master were based on documentary evidence and that there were no errors in the interpretation or construction of the contract. The court also found that the refusal of the application did not constitute an interference with the Master's discretion or with her findings of fact.

In light of the above, the court dismissed the appeal and upheld the decision of the Master to refuse the application. The court emphasised the importance of the timely filing of amendments to pleadings and the need for adequate explanations for any delays. The court also highlighted the role of the Master in exercising her discretion in relation to such applications and the need for findings of fact to be based on documentary evidence. The court did not make any orders as the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The decision being a discretionary one, the appeal must be decided in accordance with the principles in House v R.[1][1] (1936) 55 CLR 499.Background The action arises out of a building dispute between SJ Weir Pty Ltd (Weir), a builder and the first respondent in these proceedings, and Keene, the owner, after Weir entered into a contract to build a house for Keene in 2005. Practical completion of the construction of the house was deemed to have been achieved in April 2008. Following completion Weir commenced a claim for damages from Keene for breach of contract. Keene denied the claim and filed a counterclaim against Weir claiming damages for, amongst other things, defective work (the counterclaim). Keene also commenced a third party claim against the architect engaged by him, Tridente Architects Pty Ltd (Tridente), the second respondent in these proceedings, claiming damages against Tridente for breach of contract in the eventuality that Keene is found to be liable to Weir. Tridente then cross‑claimed against Keene for unpaid fees owing to Tridente (the third party cross-action). In order to understand what led to the application by Keene and its subsequent refusal by the Master on 28 October 2016, it is necessary to refer to some aspects of the procedural history of this matter.Procedural History The primary claim was commenced by Weir on 9 December 2009. On 22 June 2010 Weir filed an amended statement of claim and on 18 December 2015 Keene filed a second defence to the claim. Keene filed a second counterclaim against Weir on 16 December 2013 followed by Weir’s second defence to the counterclaim on 18 December 2013. In the third party claim Keene filed a second statement of claim on 12 July 2013 and Tridente filed a defence to the second statement of claim on 14 February 2014. More than 12 months prior to the filing of the application by Keene to file a third statement of third party claim against Tridente the pleadings in the action had closed, disclosure had been made by all parties and a mediation took place without resolution of the issues. Keene then sought to amend the third party statement of claim in respect of three matters described respectively as the stone tiles defect, the linished steel defect, and the glass balustrade defect. The Master considered the application in respect of each defect individually. In doing so, she traversed the procedural history in relation to each proposed amendment, having identified the matters relevant to the exercise of her discretion by reference to the observations of Bleby J in Channel Seven Adelaide Pty Ltd v Manock.[2][2] (2010) 273 LSJS 70. Ultimately the Master concluded in respect of each proposed amendment that it was now too late, there had been no adequate explanation for the delay, the proposed amendments were based on matters known to Keene for many years, and each and every one of the amendments would have significant consequences in terms of further delay and cost. Her Honour then refused the application.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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