Patten v Lend Lease Funds Management - [2010] NTSC 51

Patten v Lend Lease Funds Management [2009] NTSC 51

PARTIES: Agnes Martha Patten
v
Lend Lease Funds Management Pty Ltd
and
Vai Queensland Pty Ltd
TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY

JURISDICTION:

SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: 16/08 (20804544)
DELIVERED: 28 October 2010
HEARING DATES: 7 October 2010
JUDGMENT OF: MASTER LUPPINO
CATCHWORDS:
Limitation of actions – Extension of time – Whether extension should be
granted – Material facts – Residual discretion – Whether extension
necessary.

Practice and Procedure – Joinder of parties – Addition of a party after the
expiration of the limitation period.

Limitation Act s 44
Supreme Court Rules O 9.06, 43.03
Merton Enterprises Pty Ltd v Nelson (1998) 13 NSWLR 454; Patterson v
Northern Territory of Australia (2001) NTSC 93; Bradley v Eagle Star
Insurance Co Ltd [1989] AC 957; Sola Optical Australia Pty Ltd v Mills
(1987) 163 CLR 628; Fersch v Power and Water Authority (1990) 101 FLR
78; Berno Bros Pty Ltd v Green’s Steel Constructions Pty Ltd (1992) 107
FLR 279; Cubillo v Commonwealth of Australia (2000) 103 FCR 1; Ulowski
v Miller [1968] SASR 277; Forbes v Davies [1994] Aust Torts Reports 81-
279.
REPRESENTATION:
Counsel:

Plaintiff: Mr Young
Defendant: Not Represented
Third Party: Mr Francis
Solicitors:

Plaintiff: Ward Keller
Defendant: Hunt & Hunt
Third Party: David Francis & Associates
Judgment category classification: B

Judgment ID Number: LUP1006
Number of pages: 13
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Patten v Lend Lease Fund Management Pty Ltd [2009] NTSC 51

No. 16/08 (20804544)

BETWEEN:
Agnes Martha Patten
Plaintiff

AND:
Lend Lease Funds Management Pty Ltd
Defendant

AND:
Vai Queensland Pty Ltd
Third Party

CORAM: MASTER LUPPINO
REASONS FOR DECISION (Delivered 28 October 2010)

The Court is dealing with an interlocutory application seeking the joinder of a party pursuant to Order 9.06 of the Supreme Court Rules (“the Rules”) as well as an extension of the applicable limitation period pursuant to section 44(3) of the Limitation Act (“the Act”).
The substantive claim bought by the Plaintiff is for damages for injuries sustained in a fall at a shopping centre owned by the Defendant. The applicable limitation period expired on 6 August 2008 and the substantive proceedings were commenced before that date.
Relevant to the current application, the Plaintiff alleges that the floor where she slipped was contaminated with a liquid substance. The Plaintiff alleges that she was owed a duty of care by the Defendant and the Defendant breached that duty.
The Defendant’s Defence admits ownership of the relevant property at the relevant time but denies any breach of duty on the basis that it delegated and discharged any duty of care by reason of entering into a commercial arrangement with the Third Party.
The Defendant issued a Third Party Notice joining the Third Party on 20 January 2009.
The current application now seeks to join the Third Party as a defendant. The current Defendant chose…

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.

Continue reading Patten v Lend Lease Funds Management

Details

AGLC: Patten v Lend Lease Funds Management [2010] NTSC 51
Case: [2010] NTSC 51
Decision Date: 28/10/2010

CaseChat Overview and Summary

The Supreme Court of the Northern Territory was tasked with deciding an interlocutory application brought by Agnes Martha Patten against Lend Lease Funds Management Pty Ltd and Vai Queensland Pty Ltd. Patten sought the joinder of Vai Queensland Pty Ltd as a defendant and an extension of the limitation period to bring her claim for damages arising from a fall at a shopping centre owned by Lend Lease Funds Management. The limitation period had expired on 6 August 2008, and the proceedings were commenced before this date. Patten alleged that the floor where she slipped was contaminated with a liquid substance, and Lend Lease Funds Management breached its duty of care by failing to maintain a safe environment. Lend Lease Funds Management admitted ownership but denied any breach of duty, claiming it delegated its duty to Vai Queensland Pty Ltd through a cleaning and maintenance contract. The application was opposed by Vai Queensland Pty Ltd.

The key legal issues were whether the extension of the limitation period should be granted and whether it was necessary to join Vai Queensland Pty Ltd as a defendant. The court examined whether the facts contained in a statement by a former employee of Vai Queensland Pty Ltd, Mary Fyall, were material to Patten's case and whether they were ascertained within the required timeframe. Additionally, the court considered the residual discretion required for granting the extension and whether it was just to grant the extension in all circumstances.

The court found that the facts in Mary Fyall's statement were material to Patten's case, as they were relevant and of sufficient importance to likely influence the determination of the case. The court also found that Patten ascertained these facts on 28 May 2010, within 12 months before the expiration of the limitation period. Given that there was no evidence of prejudice to Vai Queensland Pty Ltd, and considering the importance of the facts to Patten's case, the court exercised its residual discretion in Patten's favour. The court held that it was just to grant the extension of time, and thus, the application for the extension and joinder was successful.

The court will hear the parties regarding consequential orders.

Orders