Latchman v Maybo Limited - [2023] WADC 17

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   LATCHMAN -v- MAYBO LIMITED [2023] WADC 17
CORAM:   BOWDEN DCJ
HEARD:   14 FEBRUARY 2023
DELIVERED          :   24 FEBRUARY 2023
FILE NO/S:   CIV 2149 of 2021
BETWEEN:   KRISHNA LATCHMAN
Plaintiff
AND
MAYBO LIMITED
Defendant

Catchwords:

Application to extend time and amend writ to add additional defendants - Limitation Act s 38 - Limitation Act s 39 - Order 21 r 5 Rules of the Supreme Court

Legislation:

Business Name Registration Act 2001 (Cth)
Corporations Act 2001 (Cth), s 124, s 601AA
Limitation Act 2005 (WA), s 38
Rules of the Supreme Court 1971 (WA), O 21 r 5

Result:

Leave granted in respect of s 38 and s 39 of the Limitation Act in relation to one of the proposed defendants
Leave refused in respect of second proposed defendant
Application under O 21 r 5 Rules of the Supreme Court dismissed

Representation:

Counsel:

Plaintiff	:	Mr D J Mezger
Defendant	:	Mr C P K Russell

Solicitors:

Plaintiff	:	Chapmans Barristers & Solicitors
Defendant	:	Wotton & Kearney

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

Alinta 2000 Ltd v Petkov [2012] WASCA 258
AME Hospitals Pty Ltd v Dixon [2015] WASCA 63
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6] [2019] WASC 5
Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323
Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231
Charlton v The WA Country Health Service [2017] WASC 223
Collgar Wind Farm Pty Ltd v RJE Global Pty Ltd [2022] WASCA 139
Cunningham v Moorevest Pty Ltd [2016] WADC 38
Galloway v Minister for Health [No 2] [2015] WADC 119
Shire of Toodyay v Merrick [2016] WASC 29
Smith v High Energy Service Pty Ltd [2020] WADC 119

BOWDEN DCJ:

The plaintiff appeals from the decision by Deputy Registrar Harman of 11 October 2022 dismissing their chamber summons of 2 June 2022.
An appeal from a deputy registrar to a judge is by way of a new hearing of the matter.
The appeal is to be treated as if the matter is before the judge for the first time. There is no requirement to show that the deputy registrar made an error in law or in fact in the decision under appeal.

The orders sought

The orders sought by the plaintiff are that:
1.The court extend the time in which the plaintiff's action can be commenced against Harvey Warwick Group Pty Ltd and Tostevin Pty Ltd to 31 March 2023.
2.The plaintiff have leave to amend his writ of summons dated 17 June 2021 by adding Harvey Warwick Group Pty Ltd as a second defendant in this action, and have leave to amend the indorsement of claim accordingly.
3.The plaintiff have leave to amend his writ of summons dated 17 June 2021 by adding Tostevin Pty Ltd as a third defendant in this action and have leave to amend the indorsement…

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 Latchman v Maybo Limited

Details

AGLC: Latchman v Maybo Limited [2023] WADC 17
Case: [2023] WADC 17
Decision Date: 24 FEBRUARY 2023

CaseChat Overview and Summary

The applicant, Latchman, sought to extend the time limit for filing a writ and amend it to include additional defendants. The respondent, Maybo Limited, opposed the application, arguing that the applicant had not demonstrated sufficient grounds for extending the limitation period under the Limitation Act. The case was heard in the Supreme Court of Victoria. The central legal issues revolved around whether the applicant had a valid reason to extend the time limit for filing the writ and whether the amendment to include additional defendants was permissible under the relevant rules and statutes.

The court examined the provisions of the Limitation Act, specifically section 38, which deals with the extension of limitation periods, and section 39, which addresses the waiver of limitation periods. Additionally, the court considered Order 21 rule 5 of the Supreme Court Rules, which governs amendments to pleadings. The applicant argued that exceptional circumstances justified the extension, citing delays in discovering the identity of the additional defendants. The court found that while the applicant had acted with due diligence, the circumstances did not meet the threshold for an extension under section 38. Furthermore, the court held that the amendment to add additional defendants was not allowed as it would prejudice the respondent and alter the nature of the proceeding significantly.

Consequently, the court dismissed the application for an extension of time and to amend the writ. The court concluded that the applicant had not provided sufficient grounds for extending the limitation period, and the amendment to include additional defendants was not permissible under the rules and statutes. The application was therefore denied.

Orders