M L Holdings Pty Limited v Marrapodi Holdings Pty Ltd

[2002] WADC 176

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   M L HOLDINGS PTY LIMITED -v- MARRAPODI HOLDINGS PTY LTD & ORS [2002] WADC 176

CORAM:   REGISTRAR KINGSLEY

HEARD:   30 APRIL 2002

DELIVERED          :   15 AUGUST 2002

FILE NO/S:   CIV 2770 of 1998

BETWEEN:   M L HOLDINGS PTY LIMITED

Plaintiff

AND

MARRAPODI HOLDINGS PTY LTD
First Defendant

FRANCESCO MARRAPODI
Second Defendant

VIOLA SANTA MARRAPODI
Third Defendant

Catchwords:

Practice - Application to amend defence and counterclaim - Turns on own facts

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr B W Ashdown

First Defendant             :     Mr P A Smith

Second Defendant         :     Mr P A Smith

Third Defendant           :     Mr P A Smith

Solicitors:

Plaintiff:     Williams & Co

First Defendant             :     Patrick Smith

Second Defendant         :     Patrick Smith

Third Defendant           :     Patrick Smith

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

Nil

Case(s) also cited:

Nil

1. REGISTRAR KINGSLEY:  By the defendants' chamber summons dated 22 March 2002, the defendants seek leave to file an amended defence and counterclaim.  The defendants' defence and counterclaim were subject to scrutiny by Deputy Registrar Harman in November 2000.  At that time, par 9(l), par 9(m) and par 11 to par 31 inclusive of the defence and counterclaim were struck out.  Plaintiff's counsel submits that the defendants seek to reintroduce the paragraphs into the substituted minute.

2. That being the case, plaintiff's counsel argues that the paragraphs sought to be inserted by the substituted minute of amended statement of claim dated 30 April 2002 ought not to be allowed in.  Citing authority, plaintiff's counsel submits that a party is not permitted to amend a pleading to reintroduce material previously struck out.

3. The plaintiff's claim in this action is for arrears of rental arising under a lease agreement between the plaintiff and the first defendant.  The second and third defendants are guarantors of the first defendant's indebtedness.  The plaintiff brought their proceedings in July 1998.

4. In August 1998 the defendant purportedly made a reference to the Commercial Tribunal ("the Tribunal") under s 19(1) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 ("the Act").  Consequently by August 1998, there are proceedings in this court and a purported reference to the Tribunal.

5. This brings into play s 27 of the Act. Section 27 provides that where a question is referred to the Registrar of the Tribunal, and the question is one that a court has jurisdiction to determine, proceedings may be instituted to determine the question before the court or by way of reference to the Registrar, but not both.

6. In this case, there is a real issue as to whether there has been an effective reference to the Tribunal.  It would appear that in completing the application comprising the reference, the applicant omitted to state the question to be referred to the Registrar of the Tribunal.  Paragraph 7 of the reference requires the question in dispute that is being referred to the Registrar of the Tribunal to be stated.  In the space provided, the applicant wrote as attached but, unfortunately, nothing was attached.  Thus, defendants' counsel submits there has been no valid or effective reference to the Tribunal.

7. The issue of the reference to the Tribunal I considered on the defendants' application dated 13 December 2000.  The defendants had sought an order that the proceedings be dismissed, or the plaintiff's claim be struck out, on the grounds that the matter the subject of these proceedings were subject to a reference to the Tribunal.

8. Section 16 of the Act provides that subject to s 11(5) a party to a retail shop lease may refer a question to the Registrar. Section 19 provides that a question is referred to a Registrar by a party completing the prescribed form and lodging it. I found that there was no evidence of any particulars of the question being put to the Tribunal. I was therefore unable to determine the defendants' application because there was no evidence upon which I could conclude whether the same question was sought to be tried both in the Tribunal and in this court.

9. However there is extant an application before the Registrar of the Commercial Tribunal. I am not aware of the procedure before the Tribunal but there is nothing I have read in the Act which suggests the applicant is now precluded from filing, in the Tribunal, particulars of the reference. It would appear the Registrar has not been moved to strike out the reference for want of particulars.

10. In my opinion it is open for the applicant, in the Tribunal, to promote the reference by now providing particulars.  This was the point, in my opinion, that Deputy Registrar Harman was alluding to at par 7 of his Reasons.

11. At par 7 Deputy Registrar Harman stated:

    "I have already determined that the defendant is expected to specify which matters are not the subject of reference.  If it transpires that some matters the subject of reference to the tribunal are not within the jurisdiction of the tribunal then it is conceivable at that point the defendants may wish to amend the pleadings in order to embrace those matters.  Until a determination is made by the tribunal in my opinion the defendant should simply plead to the non‑referred matters."

12. Without there being any particulars to the reference there is nothing upon which the Tribunal can make any determination.  But there may well be no reason why the defendant cannot now provide particulars of the reference to bring the matter within the Tribunal.

13. Whilst there is the potential of the dispute proceeding before the Tribunal I am of the opinion the extent of the pleading cannot be determined.  The defendant has chosen their Tribunal but have not put any particulars before the Tribunal for it to make a decision.  There is the potential for an abuse of process.

14. Accordingly the defendants' application to amend the defence and counterclaim is refused on the grounds that proceedings in the Tribunal are still open.

15. I will hear counsel on the form of order and costs.