MACKENZIE & ANOR -v- ALBANY FINANCE LTD [2003] WASC 100 (S)

Link to Appeal :

[2004] WASCA 301 [2004] WASCA 301(S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 100 (S)
Case No:	CIV:2657/2000	Heard:	5-7 & 10 JUNE, 8, 9, 12, 13, 15 & 16 AUGUST, 2 & 3 OCTOBER 2002, 11 JUNE & 15 JULY 2003
Coram:	McLURE J	Delivered:	30/05/03
Supplementary Delivered:	29/07/03
No of pages:	10	Judgment Part:	1 of 1
Result:	Application to amend successful
Category:	B
PDF Version

Parties:	JAMES MACKENZIE JOAN EDNA MACKENZIE ALBANY FINANCE LTD
Catchwords:	Application to amend defence after trial Whether the prima facie position under O 66 r 2(a) of the Rules of the Supreme Court should apply Costs of subpoenaed witness Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 2(a)
Case References:	Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 Aries Tanker Corporation v Total Transport Ltd [1977] 1 WLR 185 Brandsma & Crockett Pty Ltd v Heindal Pty Ltd (2002) 26 WAR 323 Collins v Westralian Sands Ltd (1993) 9 WAR 56 Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 Gordon v MacGregor (1909) 8 CLR 316 Guinness Plc v Saunders [1988] 1 WLR 863 Hawthorn Cuppaidge & Badgery v Channell [1992] 2 Qd R 488 Hazcor Pty Ltd v Kirwanon Pty Ltd (1995) 12 WAR 62 Henderson v Amadio Pty Ltd, unreported; Fed Ct of Aust (Heerey J); 22 March 1996 Hill v Ziymack (1908) 7 CLR 352 Jewel Walk Pty Ltd & Anor v Kondinin Group Inc [2001] WASC 197 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Latoudis v Casey (1990) 170 CLR 534 Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81 Morgan v Banning (1999) 20 WAR 474 Rawson v Samuel (1841) 41 ER 451 Re Madden as Official Liquidator of Aquanaut Constructions Pty ltd (in liq) [2001] NSWSC 1051 Sanders v Snell (No 2) (2000) 174 ALR 53 Sanders v Snell [2003] FCAFC 150 Schmidt v Gilmour [1988] WAR 219 Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323 Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58(S) Waters v PC Henderson (Australia) Pty Ltd, unreported; CA of NSW; Library No 256098; 6 July 1994 Westgold Resources NL v St George Bank Ltd; unreported; SCt of WA (Anderson J); Library No 980717; 9 December 1998

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MACKENZIE & ANOR -v- ALBANY FINANCE LTD [2003] WASC 100 (S) CORAM : McLURE J HEARD : 5-7 & 10 JUNE, 8, 9, 12, 13, 15 & 16 AUGUST,
2 & 3 OCTOBER 2002, 11 JUNE & 15 JULY 2003

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: [2003] WASC 100 (S)
Decision Date

CaseChat Overview and Summary

In the case of MacKenzie v Albany Finance Ltd, the plaintiffs, James and Joan Edna MacKenzie, brought an action against Albany Finance Ltd. The plaintiffs sought recovery of sums they claimed were owed to them by the defendant. The case involved multiple items or deposits made by the plaintiffs with the defendant over a period of time. The dispute centred on whether the defendant had made certain repayments and the interest owed on those repayments. The case was heard over a series of hearings before McClure J in the Supreme Court of Western Australia. The court had to determine whether the defendant could amend its defence after the trial, the costs of a subpoenaed witness, and the costs of the action.

The court considered the application to amend the defence after the trial. The defendant sought to amend its defence to reflect the factual and legal issues that arose during the trial. The court held that the principle of fair play and the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting a case against him should apply. The court found that there was no relevant prejudice to the plaintiffs to allow the amendment and granted leave to amend the defence accordingly. The court refused leave to amend in certain respects as it was inconsistent with the court's reasons or went beyond the court's findings.

Regarding costs, the court noted that the plaintiffs' claims involved separate causes of action and that O 66 r 2(a) of the Rules of the Supreme Court applied. The court considered the approach to that rule and decided to award costs to the overall winning party reduced by a percentage to reflect the areas of loss. The court found that the plaintiffs should be awarded 40 per cent of their taxed costs and disbursements. The court rejected the plaintiffs' application for special costs orders and found that the plaintiffs should pay the balance of the subpoenaed witness's expenses.

In conclusion, the court made final orders that the defendant pay the plaintiffs certain sums with interest, and the plaintiffs' claims otherwise be dismissed. The court ordered the defendant to pay 40 per cent of the plaintiffs' costs and disbursements of the action to be taxed, and the plaintiffs to pay the balance of the subpoenaed witness's expenses.

Orders