| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : KELLY -v- PIONEER CONCRETE (WA) PTY LTD [2003] WADC 190 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 1 JULY 2003 DELIVERED : 27 AUGUST 2003 FILE NO/S : CIV 2545 of 2000 BETWEEN : WAYNE KELLY Plaintiff
AND
PIONEER CONCRETE (WA) PTY LTD (ABN 58 008 689 781)
Defendant
DAIMLERCHRYSLER AUSTRALIA/PACIFIC PTY LTD (ACN 004 411 410)
Third Third Party
WELLINGTON PLACE PTY LTD (ACN 008 741 571)
ANDERSON NOMINEES PTY LTD (ACN 008 759 834)
ALFARO PTY LTD (ACN 008 994 205)
CITYWIDE INVESTMENTS PTY LTD (ACN 054 755 841)
Fourth Third Parties
(Page 2)
Catchwords:
Practice - Western Australia - Practice under the Rules of the Supreme Court - Application to amend third party notices - Consideration of impact of limitation
Legislation: Nil
Result: Application refused Representation:
Counsel:
Plaintiff : No appearance
Defendant : Ms J N Eversden
Third Third Party : Mr C D Clifton
Fourth Third Parties : Mr E A Rennie
Solicitors:
Plaintiff : Not applicable
Defendant : Mallesons Stephen Jaques
Third Third Party : Jackson McDonald
Fourth Third Parties : Tolson & Co
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Abb Services Pty Ltd (formerly known as Abb Engineering Construction Pty Ltd) v Hetherington & Anor [2001] WASCA 235
Aqua Technics (WA) Pty Ltd v Summit Chemicals Pty Ltd [2001] WASC 110
Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR 40-853
Martin v Stratman & Anor (1994) Aust Torts Reports 81-262
Nixon & Ors v Philip Morris (Australia) Ltd & Ors [1999] 165 ALR 515
(Page 3)
Renowden v McMullin (1970) 123 CLR 584
Ruzeu v Massey-Ferguson (Aust) Ltd [1983] 1 VR 733
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
Weldon v Neale (1887) 19 QBD 394
(Page 4)
1 DEPUTY REGISTRAR HARMAN: By the application the defendant seeks to amend the terms of its third party notices to include claims founded upon negligent misstatement. The allegations of misstatement relate to discrete representations made in relation to the compatibility of the truck and trailer, and what are described as the safety representations, the service representations and the warranty representations.
2 The parties went to some length to analyse the sufficiency of the relevant terms of the notice and although I do not intend to deal with that issue, I consider that if I was otherwise disposed in relation to the application, in all probability I would have considered that some features of the notice warranted some serious attention. I do not consider that it is necessary to deal with that feature of the application as I have come to a conclusion adverse to the defendant in relation to the impact of the limitation period. 3 The relevant representations are described as having been made in or about 1990. Of particular significance is the fact that in the pleading under the notice in its present form there is an allegation at par 5(f) against the third third party and par 9(e) against the fourth third parties as follows: "(In) about November 1996 the plaintiff noticed that the wear plate was moving diagonally about 1½ inches whenever he was reversing, suggesting that the chassis rails were moving backwards or forwards. When the plaintiff's complaint was investigated, it was found that the gearbox mounting had cracked. This was replaced with a second-hand gearbox mounting instead of a new one…" 4 That allegation is prefaced by reference to the plaintiff's allegation of structural and mechanical problems of it is but one. Significantly it has been pleaded by the defendant in its case against the third parties. 5 As part of the application presently before me the defendant sought to amend the statement of claim made against the third parties. That application was unsuccessful. Be that as it may, it contained a similar paragraph to that which I have just quoted and it was sought to be introduced by the following allegation: "The plaintiff alleges that during the period mentioned in par 4 above he experienced the following structural and mechanical problems with the Truck and Unit 9431."
(Page 5)
6 The relevant period being between 1993 and November 1996.
7 I am satisfied that the defendant is a commercial entity and that part of its activities include the transport of bulk materials in vehicles such as that described in the pleadings. 8 In my opinion it is inconceivable that at a time even as late as November 1996 the defendant had not suffered loss as a consequence of the repairs to the vehicle canvassed by the defendant in its statement of claim. The defendant's commercial activities were such that I have no doubt that the need for repair of the vehicle must have had some impact on the operation of its business if for no other reason than that for the purpose of repair the truck must have been off the road. 9 In my opinion that conclusion is sufficiently clear to determine the application against the defendant. |