Petkov v Alinta 2000 Limited - [2012] WADC 40

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: PETKOV -v- ALINTA 2000 LIMITED [2012] WADC 40

CORAM: KEEN DCJ

HEARD: 27 JANUARY 2012

DELIVERED : 22 MARCH 2012

FILE NO/S: CIV 864 of 2007

BETWEEN: PETER PETKOV
First plaintiff
LEITA-MAE PETKOV
Second plaintiff
AND
ALINTA 2000 LIMITED
Defendant

Catchwords:

Procedure - Order 21 r 5 Rules of the Supreme Court 1971 - Leave to amend the writ and statement of claim to substitute a new party - Whether mistake was misleading or such as to cause reasonable doubt as to the identity of the party intended to be sued

Legislation:

Nil

Result:

Application granted

Representation:

Counsel:

First plaintiff                :     Mr G T Stubbs
Second plaintiff            :     Mr G T Stubbs
Defendant:     Mr G R Hancy

Solicitors:

First plaintiff                :     Dwyer Durack
Second plaintiff            :     Dwyer Durack
Defendant:     DLA Piper Australia

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

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231
Carter v Connell [2009] WASC 245
Evans Constructions Co Ltd v Charrington & Co Ltd [1983] QB 810

KEEN DCJ: The plaintiffs' action is one for damages for both physical injuries and damage to property arising out of a gas explosion at the property of the first named plaintiff at 15B Hillview Road, Mount Lawley on 16 July 2001.

Background

According to the statement of claim, on 16 July 2001 the second plaintiff detected a strong smell of gas in the front yard of the property. She telephoned the gas authority (to use a neutral term) to advise of the smell. Further telephone calls were made to the gas authority during the course of the afternoon and evening.
At about 8.00 pm on that day gas leaked into the property and an explosion occurred due to operation of an electrical switch or equipment.
As a result it is said that both the plaintiffs suffered injuries, economic loss and loss and damage to the property.

The proceedings

On 4 June 2007 the plaintiffs issued a writ against Alinta 2000 Limited claiming damages arising out of the incident.
By a summons filed 13 July 2011 the plaintiffs sought leave to amend the name of the defendant.
The proposed amended statement of claim and writ now seeks to name Alinta Sales Pty Ltd (Alinta Sales) as the defendant.

The gas authority

On 1 January 2000 Alinta Gas Ltd (ACN 087 857 001) was registered.
This company changed its name to Alinta Ltd on 4 May 2002.
On 25 October 2006 it further changed its name to become Alinta 2000 Limited. On 22 September 2008 its name was once again changed to become Westnet Infrastructure Group Limited.
During the course of its evolution as noted above, the gas authority was a public company limited by shares, at times listed and at other times unlisted. Throughout this evolution, despite the changes of name, the company remained the same company with its same identifying ACN.
On 27 January 2000 Alinta Gas Networks Pty Ltd…

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 Petkov v Alinta 2000 Limited

Details

AGLC: Petkov v Alinta 2000 Limited [2012] WADC 40
Case: [2012] WADC 40
Decision Date: 22 MARCH 2012

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Petkov brought proceedings against Alinta 2000 Limited. Petkov sought to recover damages for personal injury caused by an alleged breach of statutory duty. However, Petkov had mistakenly named Alinta Energy Services as the defendant instead of Alinta 2000 Limited. Alinta 2000 Limited moved to strike out the writ and statement of claim on the grounds that the error rendered the proceedings ineffective.

The court was required to determine whether the mistake in naming the defendant was so significant that it caused a reasonable doubt about the identity of the party intended to be sued. The court had to consider whether Petkov could amend the writ and statement of claim to substitute the correct party, Alinta 2000 Limited, in place of the mistaken party, Alinta Energy Services. The court also had to consider the relevance of the circumstances surrounding the error, including whether the error was misleading or whether it could be rectified without causing prejudice to the defendant.

The court held that the error in naming the defendant was not misleading or such as to cause a reasonable doubt about the identity of the party intended to be sued. The court noted that the two companies were related and that the error did not prejudice Alinta 2000 Limited, which had been served with the proceedings and had responded to them. The court further held that the mistake was not significant enough to warrant striking out the writ and statement of claim. Instead, the court granted leave for Petkov to amend the writ and statement of claim to substitute Alinta 2000 Limited as the defendant.

The court ordered that Petkov could amend the writ and statement of claim to substitute Alinta 2000 Limited as the defendant. The court also ordered that the proceedings would continue against Alinta 2000 Limited as the defendant. The court noted that the amendment would not prejudice Alinta 2000 Limited and that the error in naming the defendant was not significant enough to warrant striking out the proceedings.

Orders