Re: Bambora P/L v Sun Alliance Aust Ltd - [1999] QSC 116

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane Writ No.1058 of 1990
Before the Hon. Mr Justice Mackenzie
[re: Bambora P/L v Sun Alliance Aust Ltd]
BETWEEN:

BAMBORA PTY LTD (IN LIQUIDATION)
Plaintiff

AND:

SUN ALLIANCE AUSTRALIA LIMITED
Defendant
JUDGMENT - MACKENZIE J.

Judgment delivered 3 June 1999
CATCHWORDS: PRACTICE AND PROCEDURE - Statement of Claim - whether amendment could be made pursuant to O 32 - whether proposed amendment raised a separate cause of action.

Supreme Court Rules O 32 rr 1, 2, 5
Gould v Skinner (1983) 1 Qd.R 377
Wilkinson v Rockdril Contractors Pty Ltd (1997) 1 Qd.R 560
Pianta v BHP Australia Coal Limited (1996) 1 Qd.R 65

Counsel: Mr R Lilley for the plaintiff
Mr J.S. Douglas QC for the defendant

Solicitors: Deacons Graham & James for the plaintiff
Quinlan Miller & Treston for the defendant

Hearing date: 26 May 1999

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane Writ No.1058 of 1990
Before the Hon. Mr Justice Mackenzie
[re: Bambora P/L v Sun Alliance Aust Ltd]
BETWEEN:

BAMBORA PTY LTD (IN LIQUIDATION)
Plaintiff

AND:

SUN ALLIANCE AUSTRALIA LIMITED
Defendant
JUDGMENT - MACKENZIE J.
Judgment delivered 3 June 1999

This is an application to amend a statement of claim in an action which has been on foot since 1990. The underlying facts are the following. On 16 October 1989 fire damage was caused to a night-club in Rockhampton in suspicious circumstances. On 31 October 1989 the plaintiff made a claim under an insurance policy with the respondent in respect of the fire.
Then on 10 November 1989 a further incident involving an incendiary device occurred at the night-club causing further damage. On 17 November 1989 the applicant made a claim in respect of that explosion. When about nine months had passed without the claims being paid the writ was issued. The endorsement of the writ seeks damages for breach of contract of indemnity entered into between the plaintiff and the defendant on 11 July 1989. When the statement of claim was delivered on 26 July 1990, the pleading referred only to the incident on 10 November 1989 describing it as an incident where the premises were fire bombed and severely damaged by fire.
The pleadings thereafter referred only to the incident of 10 November 1989 and no explanation has been proffered for the omission to include the incident of 16 October 1989 in them. On one occasion a version of the defence referred to the incident of 16 October 1989 inadvertently and an amendment substituting 10 November 1989 for it was delivered shortly afterwards. Even that did not result in any attempt to include the incident of 16 October 1989 in the pleadings. The amendment which is controversial seeks to include a paragraph alleging that on 16 October 1989 the premises were damaged by fire. There is an uncontroversial amendment sought claiming interest pursuant to the Insurance Contracts Act. That is equally applicable to either incident and was not objected to. 4…

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: [1999] QSC 116
Decision Date: 3 June 1999

CaseChat Overview and Summary

In the case of Bambora Pty Ltd (in liquidation) versus Sun Alliance Australia Limited, the applicant sought to amend the statement of claim in an ongoing action. The claim was initially filed in 1990, following two separate incidents of damage to a night-club in Rockhampton. The first incident occurred on 16 October 1989, when fire damage was caused under suspicious circumstances, and the second incident occurred on 10 November 1989, when an incendiary device resulted in further damage to the premises. The applicant made separate claims under an insurance policy with the respondent for both incidents, but the writ and the statement of claim initially only referred to the second incident, omitting the first incident.

The primary legal issue the court needed to address was whether the proposed amendment to the statement of claim could be allowed under Supreme Court Rules Order 32. The applicant argued that the amendment did not change the cause of action but only altered the particulars of the claim, which was always a claim for damages for breach of a policy indemnity. Conversely, the respondent contended that the statement of claim had superseded the broader claim on the writ, and the proposed amendment introduced a new cause of action for indemnity for the loss and damage caused by the fire on 16 October 1989. The respondent also argued that the two incidents were separate and distinct, and therefore the conditions prescribed in Order 32 had not been satisfied.

The court held that the causes of action did not arise out of the same facts or substantially the same facts, and therefore Order 32 r 1 could not be invoked to allow the amendment out of time. The court found that the plaintiff had conducted the action on the basis that the incident in respect of which it was seeking to enforce the insurance contract was the explosion and fire on 10 November 1989, and there were unambiguous indications in the pleadings that the defendant did not understand the action to be concerned with the earlier incident. The statement of claim had consistently restricted the ambit of the more general claim endorsed on the writ and had superseded that claim. As a result, the summons was dismissed with costs to be taxed.

Orders