MacKenzie v Albany Finance Ltd

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


Link to Appeal :

SUPREME COURT OF WESTERN AUSTRALIACitation No:[2003] WASC 100 (S)
Case No:CIV:2657/20005-7 & 10 JUNE, 8, 9, 12, 13, 15 & 16 AUGUST, 2 & 3 OCTOBER 2002, 11 JUNE & 15 JULY 2003
Coram:McLURE J30/05/03
29/07/03
10Judgment Part:1 of 1
Result: Application to amend successful
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
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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

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Background

Background to the litigation

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Evidence Before The Court

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Legal Principle Established

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