Nudrill Pty Ltd v La Rosa - [2010] WASCA 158

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: NUDRILL PTY LTD -v- LA ROSA [2010] WASCA 158

CORAM: McLURE P
BUSS JA
MURPHY JA

HEARD: 9 APRIL 2010

DELIVERED : 4 AUGUST 2010

FILE NO/S: CACV 69 of 2009

BETWEEN: NUDRILL PTY LTD
Appellant
AND
GIUSEPPE LA ROSA
ROSINA LA ROSA
Respondents

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
Citation  :NUDRILL PTY LTD -v- LA ROSA & ANOR [2009] WADC 84
File No  :CIV 1523 of 2008

Catchwords:

Practice and procedure - Amendment to allow claim against individual only in alternative to claim against partnership of which individual is allegedly partner

Partnership - Joint contractual obligations of partners

Practice and procedure - Alternate pleas in contract and tort - Possessory title to property founding claim in negligence - Claim in tort open on material facts pleaded - Reliance on legal consequences which arise from material facts pleaded

Practice and procedure - Court's power to vary its own orders

Practice and procedure - No case submission - Verdict by direction - Party applying should have been put to election

Legislation:

Partnership Act 1895 (WA), s 17, s 18, s 19, s 26
Rules of the Supreme Court 1971 (WA), O 21 r 5

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr J A Thomson
Respondents : Dr P R MacMillan

Solicitors:

Appellant: SRB Legal
Respondents : Friedman Lurie Singh & D'Angelo

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

Alexander v Rayson [1936] 1 KB 169
Allan v Hocking [2006] TASSC 2; (2006) 15 Tas R 234
BHP Steel (RP) Pty Ltd v ABB Engineering Construction Pty Ltd [2001] WASCA 294
Bryan v Maloney [1995] HCA 17; (1995) 182 CLR 609
Cahill v Construction, Forestry, Mining & Energy Union (No 2) [2008] FCA 1292; (2008) 170 FCR 357
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1
Crouch v Joseph (Unreported, WASC, Library No 9004.1, 22 August 1991)
Esanda Finance Corp Ltd v Peat Marwick Hungerfords [1997] HCA 8; (1997) 188 CLR 241
Fankhauser v Mark Dykes Pty Ltd [1960] VR 376
Gerrard v Slamar [2004] WASCA 253
Green v Wilden Pty Ltd [2004] WASC 105
Hobbs v Petersham Transport Co Pty Ltd [1971] HCA 26; (1971) 124 CLR 220
James v Australia & New Zealand Banking Group Ltd (1986) 64 ALR 347
J‑Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA) (No 2) (1992) 38 FCR 458
Jones v Dunkel (1959) 101 CLR 298
Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd [1986] 1 AC 785
Lever Bros Ltd v Bell [1931] 1 KB 557
Morgan v Banning (1999) 20 WAR 474
Nudrill Pty Ltd v La Rosa [2009] WADC 84
Pateman v Higgin [1957] HCA 62; (1957) 97 CLR 521
Ralph M Lee (WA) Pty Ltd v Fort (1991) 4 WAR…

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 158
Decision Date: 4 AUGUST 2010

CaseChat Overview and Summary

Nudrill Pty Ltd sued La Rosa over a dispute related to a partnership and contractual obligations. The case was heard in the Federal Court of Australia. The central issue was whether Nudrill's claim against La Rosa, as an individual, could proceed in the absence of a claim against the partnership. Additionally, the court examined whether Nudrill's claim in tort was permissible based on the facts alleged.

The court found that Nudrill could proceed with its claim against La Rosa as an individual, as it was pleaded alternatively to the claim against the partnership. The court reasoned that where there are joint contractual obligations, a claim against one partner can be maintained independently. Furthermore, the court held that the claim in tort was viable because it relied on the legal consequences stemming from the facts pleaded, which included Nudrill's possessory title to the property. The court also noted that when alternate pleas in contract and tort are made, the court must consider whether the claim in tort is open based on the material facts pleaded.

The court exercised its discretion to vary its own orders, allowing Nudrill to amend its claim to proceed against La Rosa individually. It found that there was no case submission meriting a verdict by direction, but that La Rosa should have been given the opportunity to elect between the claims. Consequently, the court directed that La Rosa be put to the election before further proceedings.

Orders