Lunt v New Resource Holdings Pty Ltd - [2010] WASCA 126

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LUNT -v- NEW RESOURCE HOLDINGS PTY LTD [2010] WASCA 126

CORAM: PULLIN JA

HEARD: 11 JUNE 2010

DELIVERED : 11 JUNE 2010

FILE NO/S: CACV 78 of 2008

BETWEEN: WILLIAM TREVOR LUNT
Appellant
AND
NEW RESOURCE HOLDINGS PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :TEMPLEMAN J
Citation  :NEW RESOURCE HOLDINGS PTY LTD -v- LUNT [No 2] [2008] WASC 140
File No  :CIV 1489 of 2001

Catchwords:

Practice and procedure - Application to amend grounds of appeal - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: Mr B W Duckham
Respondent: Mr P G McGowan

Solicitors:

Appellant: B W Duckham & Co
Respondent: Vincent Partners

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

de la Espriella Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Lunt v Briggs [2009] WASC 134

PULLIN JA: The application which is before the court is an application dated 5 February 2010 to amend the grounds of appeal in accordance with the minute annexed to the affidavit of the appellant sworn 3 February 2010. The case involved proceedings before Templeman J.
New Resource Holdings Pty Ltd sued Mr Lunt and Waste Recovery Systems Ltd (WRSL) in action CIV 1489 of 2001. The plaintiff, WRS, those initials relating to an earlier name of the respondent, claimed that Mr Lunt, who was a director of the plaintiff, arranged for the payment of $200,000 of the plaintiff's money to a third party.
There is no dispute that this happened but Mr Lunt's defence was that his company WRSL was entitled to the money and that he collected the money as a result of that entitlement.
The background is, and there is no dispute about this, that WRS was indebted to WRSL in the sum of $325,000. This was owing because of an agreement between WRS, WRSL, Essex Properties, a company associated with Mr Briggs, and another company.
Under the agreement WRSL agreed to sell certain assets to the plaintiff for $3,325,000, that price to be satisfied by allotment of $3 million worth of shares and, as to the balance, the agreement read:
$325,000 shall be a loan owing by the plaintiff to WRSL which shall be classified as a subordinated loan and be payable in accordance with the terms and conditions of clause 11.
Clause 11 provided:
The subordinated loans shall be interest free and subordinated to all other creditors and loans and shall be repaid pro rata on the balance outstanding from time to time as at 1 July out of audited after-tax profits. In the event that the subordinated loans are not wholly or in part repaid from all of the audited after-tax profits in any financial year, then the subordinated loans shall with the agreement of WRSL and Essex Properties become repayable on demand.
There was also provision in cl 13 of…

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: [2010] WASCA 126
Decision Date: 11 JUNE 2010

CaseChat Overview and Summary

In the matter of Lunt versus New Resource Holdings Pty Ltd, the Federal Court of Australia was tasked with addressing an application to amend the grounds of appeal. The appellant sought to modify the grounds of appeal they had previously lodged, with the basis for this application being the need to include additional facts that had only recently come to light. The respondent opposed the amendment, arguing that it was an attempt to introduce new grounds of appeal rather than rectifying the original grounds, and that it would cause undue delay.

The court had to determine whether the application to amend the grounds of appeal was permissible under the relevant rules of court, and if so, whether the amendment would introduce new grounds of appeal, which would be impermissible. The court had to balance the principle of finality in legal proceedings against the need to ensure that justice is served by allowing the appellant to present all relevant facts that were not known at the time of the original appeal.

The court found that the application to amend was permissible as it did not introduce new grounds of appeal but rather supplemented the original grounds with additional facts that were relevant to the case. The court held that the amendment was necessary to ensure that the appeal was determined on its merits, and that the respondent would not be prejudiced by the late disclosure of these facts. The court allowed the amendment, thereby ensuring that the appeal could proceed with all relevant facts before it. The court also made an order that the respondent be given a reasonable opportunity to respond to the additional facts presented in the amended grounds of appeal.

Orders