Perth Photography Services Pty Ltd v Perth Professional Sales and Service Pty Ltd

[2008] WADC 136

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   PERTH PHOTOGRAPHY SERVICES PTY LTD -v- PERTH PROFESSIONAL SALES AND SERVICE PTY LTD [2008] WADC 136

CORAM:   FENBURY DCJ

HEARD:   8 AUGUST 2008

DELIVERED          :   9 SEPTEMBER 2008

FILE NO/S:   CIV 2692 of 2004

BETWEEN:   PERTH PHOTOGRAPHY SERVICES PTY LTD

Plaintiff

AND

PERTH PROFESSIONAL SALES AND SERVICE PTY LTD
Defendant

PHOTO ELECTRONIC SERVICES PTY LTD
Third Party

Catchwords:

Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr T T S Chin

Defendant:     Mr J C Curthoys

Third Party  :     Mr E J Maitland

Solicitors:

Plaintiff:     Lawton Lawyers

Defendant:     Stables Scott

Third Party  :     Maitland Lawyers

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

Nil

1. FENBURY DCJ:  This chambers summons for directions was originally the plaintiff's application for leave to re‑amend a statement of claim and for transfer of the proceedings to the Supreme Court.  However the hearing the plaintiff's application was to substitute a statement of claim dated 21 June 2008 and for the said transfer of proceedings.

2. Thus the application evolved into one to substitute a statement of claim in accordance with a minute of proposed substituted statement of claim dated 23 June 2008.  It is to this document that the parties made reference at the hearing.

3. In essence the plaintiff wishes to amend its claim for damages by expanding the heads of damage claimed and claiming increased losses as a result of defects in the equipment it had bought from the defendant.

4. According to the plaintiff the financial implications of these amendments should they be granted is that the quantum of the claim will increase to a sum in excess of $700,000 which exceeds the jurisdiction of the District Court.  Consequently the plaintiff also seeks that the matter must be transferred to the Supreme Court.

5. In its submissions the plaintiff focused upon questions of its right to amend the statement of claim in the areas suggested and upon the consequence of the amendment.

6. On behalf of the defendant it was not argued that the plaintiff should not be permitted to amend its statement of claim or substitute it, nor that the defendant would be prejudiced, but that the proposed amendments were not in accordance with the rules.  They were said to be inadequate, embarrassing and so forth and in consequence the amendments should not be allowed unless they are re‑cast.  It was also put that, in the circumstances, any question of transfer to the Supreme Court did not yet arise.

7. In short the plaintiff took points of pleading with some expressions of reluctance but, quite frankly, I think, some merit.

8. The majority of the areas of concern in the proposed substituted statement of claim relate to the particulars of loss and damage set out in pars 11 and 12 and repeated in par 15.

9. Counsel for the plaintiff did not address these at all, or at any length, during the hearing, but instead complained about the delays being caused to the progress of the action and suggested that case management concerns should result in orders in favour of the application.

10. I propose to deal briefly, and not in great detail, with the concerns raised on behalf of the defendant.  I am assisted by a helpful outline of submissions dated 6 August 2008.

11. I agree with the defendant that the collapse or failure of the business said to be caused by the provision of the defective equipment is a material fact which ought to be properly pleaded.  It should be the subject of a specific plea and not merely be mentioned in the claim for loss as it is in par 11.

12. I also agree that the plaintiff needs to plead how the alleged problems with the equipment resulted in the collapse of the business.  This is an important part of the plaintiff's allegation of loss.

13. I also agree that if the plaintiff seeks the difference between the sale price of the equipment and its value in its defective condition as damages, then the plaintiff is obliged to plead the value of the machine in that defective condition.  Otherwise the defendant has no idea of the quantum of that particular claim.  If the plaintiff is saying that the machine is valueless because of its defect then this should be pleaded.

14. Similarly, the defendant complains about the phraseology in par 11(b) of the minute to the effect that it claims "loss of profit as a result of the defects of the scanner particularised in par 8 above and the inability of the scanner to operate to its capacity".  As the defendant puts it:

    "It is incumbent on the plaintiff to particularise the calculation of the loss of profit which the plaintiff asserts was specifically caused by the breach pleaded in paragraph 8 including how each loss is causally connected to that breach."

15. As to par 12(b) of the minute the defendant complains about the plaintiff seeking to recover the costs of setting up or acquiring two businesses alleging that the cost of establishing the initial business which allegedly suffered as the result of a defective machine, is wasted expense and in addition seeking to recover from the defendant the cost of establishing a new business.  On the face of it it cannot be that the plaintiff is entitled to recover both because if it was then, as the defendant asserts, the plaintiff would have acquired both businesses for no expenditure at all.  Similar complaints are raised about par 12(b)(iii) in a claim entitled Capital Refinance and par 12b(iv), the claim for mortgage repayments.

16. Similarly, par 15, which repeats the essential allegations contained in pars 11 and 12, suffers from the same difficulties according to the defendant.

17. I am not prepared to grant leave to substitute the statement of claim in the proposed form without the pleading matters outlined by the defendant being addressed.

18. I do not feel it is appropriate for the court to grant leave to amend the statement of claim as proposed when it seems to me that the form of the proposed amendments are defective such as they would be struck out.  (See "Seamans Civil Procedure in Western Australia" Vol 1 at par 21.5.4.)  The plaintiff should be able to amend the statement of claim as it wishes to do, but it must do so in an acceptable form.  Consequently the application to transfer the proceedings to the Supreme Court must also be refused, there being no basis for such an order at this stage.

19. This application is dismissed with costs to the defendant to be taxed if not agreed.