O'Malley Nominees Pty Ltd v Shawtec Pty Ltd - [2010] WADC 2

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: O'MALLEY NOMINEES PTY LTD -v- SHAWTEC PTY LTD & ORS [2010] WADC 2

CORAM: MARTINO DCJ

HEARD: 14 JANUARY 2010

DELIVERED : 14 JANUARY 2010

FILE NO/S: CIV 1163 of 2004

BETWEEN: O'MALLEY NOMINEES PTY LTD (ACN 008 782 821)
Plaintiff
AND
SHAWTEC PTY LTD (ACN 070 514 966)
First Defendant
MICHAEL JOHN SHAW
LAURENCE DAVID SHAW
Second Defendants

Catchwords:

Practice and procedure - Application to amend writ of summons and statement of claim - Considerations of delay and expense

Legislation:

Nil

Result:

Application allowed in part

Representation:

Counsel:

Plaintiff:     Mr A J N Aristei
First Defendant             :     Mr A R MacPherson
Second Defendants       :     Mr A R MacPherson

Solicitors:

Plaintiff:     Irwin Legal
First Defendant             :     Hotchkin Hanly
Second Defendants       :     Hotchkin Hanly

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

Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14
Morgan v Banning (1999) 20 WAR 474
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233

MARTINO DCJ: This action was commenced in the Supreme Court on 24 March 2003. The writ of summons by which the action was commenced was endorsed with a four page indorsement of claim in which the plaintiff, O'Malley Nominees, as landlord, claimed from the first defendant, Shawtec, as tenant and the second defendants, Mr and Mrs Shaw, as guarantors of Shawtec's obligations under the lease, possession of three units in Guthrie Street, Osborne Park, arrears of outgoings, rent or alternatively mesne profits and damages for breach of contract. The action was transferred to this court on 21 November 2003. By that time Shawtec had vacated the premises at the end of the lease period on 30 June 2003 and so the claim for possession was no longer being pursued.
On 13 December 2004 O'Malley Nominees filed and served its statement of claim. It is a 20 page document in which O'Malley Nominees claims unpaid outgoings, interest on any unpaid rent and outgoings, mesne profits, damages for breaches of covenants, damages for wrongful termination or repudiation of leases and interest. The statement of claim was signed by Mr A J Aristei, who continues to act as counsel for O'Malley Nominees.
On 13 May 2009 O'Malley Nominees applied for leave to amend its statement of claim. The amendments for which leave was sought were substantial. They were, in summary, to plead:
a.that a deed of renewal of sub-lease incorporated the terms of the initial sub-lease, as well as the original lease, and that Shawtec had breached a term of the initial sub-lease;
b.additional breaches of the original lease in failing to comply with obligations to maintain the leased premises;
c.additional breaches of the original lease in failing to comply with all relevant laws;
d.that there were amendments made to a lease of one of the units by discussions and correspondence that took place in September 2000;
e.that O'Malley Nominees had taken steps to mitigate its loss arising from Shawtec's failing…

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] WADC 2
Decision Date: 14 JANUARY 2010

CaseChat Overview and Summary

O'Malley Nominees Pty Ltd brought an action against Shawtec Pty Ltd in the Supreme Court of New South Wales. The plaintiff sought to recover damages for breach of contract and unjust enrichment, arising out of a commercial arrangement between the parties. Shawtec sought to have the application for leave to amend the writ of summons and statement of claim dismissed, arguing that the plaintiff had unreasonably delayed in bringing the application and that the amendment would cause expense and delay.

The court considered the relevant principles for granting leave to amend a pleading, particularly the need to balance the interests of justice against any prejudice to the opposing party. The court examined the circumstances of the delay, the merits of the proposed amendment, and the potential impact on the proceedings if leave were to be granted. The court was required to decide whether the plaintiff's delay was reasonable, and whether the amendment would cause undue expense or delay to the defendant.

The court held that the plaintiff's delay in bringing the application was not unreasonable, given the circumstances of the case. The court found that the proposed amendment was not frivolous or vexatious, and that it was in the interests of justice for the amendment to be allowed. The court noted that any potential expense or delay caused by the amendment would be minimal, and that the interests of justice outweighed any prejudice to the defendant. The court granted leave for the writ of summons and statement of claim to be amended, and directed the parties to proceed with the amended pleadings.

The court did not make any specific orders regarding costs or further directions in the proceedings. The parties were to continue with the amended pleadings and proceed with the trial of the matter as scheduled.

Orders