Nield v Murphy - [2003] WADC 137

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: NIELD -v- MURPHY & ANOR [2003] WADC 137

CORAM: REGISTRAR KINGSLEY

HEARD: 2 APRIL 2003

DELIVERED : 11 JUNE 2003

FILE NO/S: CIV 4402 of 1999

BETWEEN: PAUL NIELD AND CHRISTINE NIELD
Plaintiffs
AND
MARTIN DANIEL MURPHY
First Defendant
MANNOR HOLDINGS PTY LTD (ACN 060 761 908)
Second Defendant

Catchwords:

Practice - Application to amend defence to withdraw an admission

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiffs:     Mr A Metaxas
First Defendant             :     Mr D O D Price
Second Defendant         :     Mr D O D Price

Solicitors:

Plaintiffs:     Metaxas & Vernon
First Defendant             :     D O D Price & Associates
Second Defendant         :     D O D Price & Associates

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

Nil

Case(s) also cited:

Hamilton v Australian Telecommunications Commission [1989] 2 Qd R 18
Shannon v Lee Chun (1912) 15 CLR 257

REGISTRAR KINGSLEY: This is the defendants' application seeking leave to amend its defence in the form of a minute of proposed amended defence dated 24 February 2003. By their statement of claim dated 17 March 2000 the plaintiffs plead that they entered into an agreement in November 1996 with the first defendant on his own behalf and/or on behalf of the second defendant that the first defendant and/or the second defendant could tip clean fill free of noxious material on the plaintiffs' property for reward (par 4 statement of claim). By a defence filed 7 April 2000 the first and second defendants admit to par 4 of the statement of claim except to say that the type of material to be tipped was to be rubble.
Paragraph 6 of the statement of claim pleads there was an implied term of the contract that the fill to be received by the plaintiffs would be clean fill and, in particular, free of asbestos. By par 6 of the defence dated 7 April 2000 the defendants admit par 6 of the statement of claim save that the fill was to be rubble.
Paragraph 7 of the statement of claim pleads in breach of the express term or, alternatively, the implied term, the first defendant and/or the second defendant tipped onto the property fill which was contaminated with, amongst other things, asbestos. By par 7 of the defence dated 7 April 2000 the defendants denied par 7 of the statement of claim and then go on to explain that denial by stating that all material delivered to the tip by the second defendant was not contaminated with asbestos and, if there is any asbestos on the plaintiffs' property, the defendants were not responsible for it. By a defence dated 14 June 2002 the first and second defendants purportedly lodged a further defence but there has never been any application in relation to amending the defence of 7 April 2000.
The plaintiffs oppose the defendants' application for a number of reasons, but importantly that the proposed amendments withdraw admissions.
Paragraph 4 of the statement of claim pleads an agreement between the plaintiffs and either the first defendant on his own behalf and the second defendant or the first defendant on his own behalf or the second defendant on its own behalf to tip clean fill free of noxious material on the plaintiffs' property. The proposed amendment now withdraws the admission insofar as it relates to the agreement between the plaintiffs and defendants. Further the plaintiffs' counsel submits that the defendants seek to withdraw the admission insofar as it relates to the type of material to be tipped onto the property. As I understand par 4, the type of material to be tipped onto the plaintiffs' property is clean fill free of noxious material. The defendants' defence dated 7 April refers to the type of material as rubble and this plea is maintained.
Accordingly, in my opinion, the proposed amended defence seeks to withdraw the admission as to the agreement between the plaintiffs and defendants only.
Paragraph 5 of the statement of claim pleads the express terms of the contract between the plaintiffs and defendants. Paragraph 5 of the defence dated 7 April 2000 contains the admission that the parties were as that set out in par 4. That admission is now sought to be withdrawn in the proposed amended defence.
Paragraph 6 of the statement of claim pleads the implied term that the fill to be received by the plaintiffs would be clean fill and free of asbestos. By par 6 of the defence dated 7 April 2000 the plea as to the contracting parties as referred to above was admitted but that the fill was to be rubble. The defendants in the proposed amended defence now seek to withdraw the admission as to the contracting parties.
The defendants in their proposed amended defence now seek to plead that it was an implied term of the contract that the fill to be received was to be free of noxious material. In par 4 of the statement of claim the plaintiffs plead the agreement as clean fill free of noxious material. The defendants plead that the material is rubble. By the implied term pleaded in par 6 of the statement of claim the fill to be received by the plaintiffs would be clean fill and in particular free of asbestos. By par 6 of the defence dated 7 April 2000 the admission by the defendants is that the fill is rubble but to be free of asbestos. In my opinion the defendants now seek to withdraw that admission.
As to par 7 of the proposed amended defence the defendants, whilst denying par 7 of the statement of claim, that is, that they did not breach the expressed term or implied term by tipping fill which was contaminated with asbestos, now seem to be pleading that if there was contamination with asbestos, that contamination was not in breach of the express term or the implied term. The manner in which that plea is raised is in my opinion vague and embarrassing and ought to be struck out on that basis.
Paragraph 11 of the proposed amended defence again seeks to plead the denial that the first defendant was a party, that the first defendant was an agent for the second defendant. Paragraph 11 then goes on to deny a breach of the contract, or that there was trespass, or that any duty was owed to the plaintiffs by the first defendant. Not only does par 11 appear to contradict par 4 as first pleaded in the defence dated 7 April 2000, there are a number of pleas rolled up in par 11 and is therefore embarrassing.
Where a party seeks leave to amend its pleading so as to withdraw an admission then it is necessary for material to be placed before the court to show that there has been mistake or error. There must be good cause for the grant of leave to amend to withdraw an admission. Thus matters such as an error in the taking of instructions for the preparation of the pleading, or a misapprehension by counsel or the solicitor concerned about the nature of the client's instructions must be deposed to. There has been no evidence offered to suggest that the admissions sought to be withdrawn were a result of mistake or error. Further the admission has stood on the record for some time. Whilst counsel for the defendants submitted that the statement of claim was confused pleading which lacked expression, there was in fact no application to strike out the statement of claim, nor to strike the further and better particulars of the statement of claim.
I am of the opinion that the minute of proposed amended defence dated 24 February 2003 seeks to withdraw admissions and there has been insufficient material placed before the court to show that the admissions first made were as a result of a mistake or error. Some of the pleas are also embarrassing. That being the case the defendants' application is refused. The defendants are to pay the plaintiffs' costs of the applications to be taxed.