Renowden v McMullin

[1970] HCA 24

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Menzies and Owen JJ.

RENOWDEN v. McMULLIN

(1970) 123 CLR 584

30 July 1970

Practice

Practice—Judicature Act system—Pleading—Amendment—General indorsement on writ of summons—Statement of claim—Claim narrower than indorsement—Statute-barred cause of action sought to be introduced by amendment of statement of claim—Within ambit of indorsement—Whether abandoned—Rules of the Supreme Court (Vict.), O. 3, r. 1*, O. 20, r. 2**.

Decisions

July 30.
The following written judgments were delivered:-
BARWICK C.J. AND McTIERNAN J. The appellant is a solicitor admitted to practice in the State of Victoria whose practising certificate has been cancelled and whose estate has been sequestrated under the provisions of the Bankruptcy Act 1924-1959 (Cth). Morris Alexander Ogilvie is his official receiver. On 7th December 1966 the appellant and his official receiver commenced an action against the respondents in the Supreme Court of Victoria by writ of summons. The respondents at all material times were chartered accountants practising under the firm name of A. B. McMullin &Co. As required by the terms of O. 3, r. 1, of the Rules of the Supreme Court of Victoria, the plaintiffs indorsed the writ of summons with a notice of the nature of their claim. (at p590)

2. The indorsement was as follows :

"The plaintiffs' claim is for damages arising out of the defendants' breach of contract in auditing the trust books of the second-named plaintiff in the years 1958 to 1961 inclusive in accordance with the requirements of the Legal Profession Practice Acts and the Rules made thereunder and/or in advising the second-named plaintiff generally with respect thereto ;. . . or further or alternatively

The plaintiffs' claim arises from the negligent breach of duty

owed by the defendants to the second-named plaintiff under the Legal Profession Practice Acts and the Rules made thereunder in the course of examining and auditing the trust books of the second-named plaintiff in the said years. (Sgd.) R. T. Breen.

TAKE NOTICE that the Plaintiffs require pleadings." (at p590)

3. On 31st January 1967 the plaintiffs applied to a judge in chambers for and obtained an order to extend the time for delivery of a statement of claim upon grounds appearing in affidavits of which one sworn by the appellant on 31st January 1967 contained the following statement :

"3. From about 1955 on I appointed the defendants, inter alia, to audit for reward my trust accounts pursuant to the requirements of the Legal Profession Practice Act and the Rules made thereunder and to advise me generally with respect thereto." (at p591)

4. On 16th March 1967 a statement of claim was delivered on behalf of both plaintiffs in the action. However, on 29th March, Morris Alexander Ogilvie filed a notice of discontinuance of the action so far as he was concerned and the action proceeded thereafter with the appellant as the sole plaintiff. (at p591)

5. The statement of claim rested the respondents' legal obligation to audit the appellant's trust accounts and to use professional skill and judgment in the conduct of the audit upon an alleged appointment of the respondents by the Council of the Law Institute of Victoria under the provisions of the Legal Profession Practice Act 1958 (Vict). (as amended) (the Act) and the Rules in force thereunder as auditors of the appellant's trust accounts for the financial year ending 30th June 1960. It proceeded on the footing that acceptance of that appointment by the respondents raised a duty in them towards the appellant properly to conduct the audit and to furnish him with accurate reports as to the state of his trust account. Breach of this duty was claimed to have resulted in the appellant remaining unaware of irregularities in his trust account by reason of which he lost his practising certificate and, as he claimed, in the long run became bankrupt. (at p591)

6. The statement of claim alleged that the rights asserted by the appellant were of a "personal character" which had not passed to his official receiver. The question thus raised was not dealt with in the proceedings to which we shall refer and would remain for decision should this appeal succeed. (at p591)

7. By a summons issued on 28th August 1967 after other interlocutory proceedings to which we need not refer the appellant sought leave to amend the statement of claim to allege a contractual obligation by the respondents to audit his trust accounts for the year ending 30th June 1960 and for a specific period in December 1960, to exercise proper professional skill and judgment in so doing and to advise him whether or not there were any irregularities in those accounts. The learned judge hearing the summons in chambers allowed the substitution of a contract with the appellant for the former allegation of a duty arising out of the acceptance of an appointment by the Council of the Law Institute so far as the amendment related to the financial year ending on 30th June 1960 ; but disallowed the amendment so far as it concerned the broken period of the financial year 1960/1961 to which we have referred. (at p592)

8. It was submitted by the respondents on the hearing of the summons that by filing a statement of claim which placed the source of the respondent's obligation to him upon an appointment as auditors by the Council of the Law Institute and its acceptance by the respondents the appellant had so far abandoned any other basis of liability for what we shall compendiously call faulty auditing that the indorsement on the writ of summons must be taken to have been amended by the statement of claim to make the claim it notified conterminous with the cause of action which the statement of claim itself asserted. Consequently, so it was said, the cause of action which the amendment proposed to set up should be dealt with as if the action in respect of it had been commenced at the date of the proposal to amend. By that time the relevant period fixed by the statute of limitations in respect of such a claim had run out and that cause of action was statute barred. (at p592)

9. The learned primary judge dealt with this submission in the following terms :

". . . The first argument which was advanced by Mr. Fullagar was directed to the fact that the allegation in the indorsement of breach of contract was not carried forward into the statement of claim. He contended that the statement of claim superseded the indorsement and that if the plaintiff desired to rely at trial on an allegation of contract it would be necessary for him to get leave to amend the statement of claim accordingly ; the granting of that application being a matter of discretion. In that connexion counsel referred to Cargill v. Bower (1878) 10 Ch Div 502; Lewis v. Durnford (1907) 24 TLR 64; Harries v Ashford, (1950) 1 All ER 427, and Cellular Clothing v White, (1952) 70 RPC 9. So much, I think, was not in dispute, but Mr. Fullagar went on to contend that a plaintiff making such an application was in the same position from the point of view of the Statute of Limitations as if he had not included in the endorsement the cause of action in question. No authority was cited for that proposition and I am unable to accept it." (at p592)

10. It was then argued that in order to determine whether a new cause of action was being set up by the proposed amendment, only the statement of claim and not the indorsement on the writ as well could be regarded. This submission his Honour rejected saying, in particular, that the judgment of Hodson L.J. in Hall v. Meyrick (1957) 2 QB 455 did not support the submission. (at p592)

11. Lastly it was submitted that a claim for damages in respect of faulty auditing, including in that expression, a failure to audit. in respect of a broken period of a year fell outside the indorsement on the writ and was therefore not properly the subject of an amendment of the statement of claim. This submission his Honour, though with hesitation, accepted. (at p593)

12. The appellant appealed to the Full Court of the Supreme Court of Victoria against the refusal of leave to amend. The respondents cross-appealed against the leave to amend which had been given. The Full Court dismissed the appeal and allowed the cross appeal on the ground that once the statement of claim had been delivered the writ of summons no longer covered any claim except that asserted by the statement of claim. On this footing, an amendment, in the Court's opinion, would have involved a breach of the rule of practice affirmed in Weldon v. Neal (1887) 19 QBD 394 Lord Esher, M.R., there said (1887) 19 QBD, at p395:

"We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust." (at p593)

13. The reasoning of the Full Court in allowing the cross appeal sufficiently appears from the following quotations from its reasons for judgment (1969) VR, at p 750:

"In our opinion, after the original statement of claim had been delivered, the causes of action upon which the plaintiff was suing in the action were to be ascertained exclusively by reference to the original statement of claim, without any regard being had to the indorsement of claim on the writ. And so approaching the matter, we consider, as will later appear, that pars. 11, 12, 14 and 14A had to be disallowed. We also consider that par. 11A ought to have been disallowed. Our conclusion that after the original statement of claim had been delivered, the causes of action upon which the plaintiff was suing in the action were to be ascertained exclusively by reference to that statement of claim, without regard to the indorsement on the writ, appears to us to be supported both by principle and by authority." "And O. 20, r. 2, provides that 'whenever a statement of claim is delivered the plaintiff may therein alter, modify, or extend his claim without any amendment of the indorsement of the writ'. It is a natural consequence that a statement of claim entirely supersedes the statements of the nature of the plaintiff's claim and the cause thereof and the relief or remedy required, which have to be set out in the indorsement (O. 3, r. 1), so that any cause of action raised by the indorsement but not included in the statement of claim must be treated as abandoned or discontinued. And this conclusion is supported by consideration of a substantial character, to which we now turn. Having regard especially to O. 20, r. 2, it is natural to regard a statement of claim as capable by way of amendment of the indorsement of enlarging or restricting the claims which are to be treated as the subject matter of the action: see too Large v. Large (1877) WN 198 (No doubt a statement of claim cannot completely change the cause of action from that indorsed on the writ (See Cave v. Crew (1893) 62 LJ Ch 530) But this is not material to the present case.) On this view the original statement of claim in the present case amended the indorsement on the writ so as to exclude all claims based on contract, and also any claim related to the year 1961, and so as to add a claim (par. 11) based on common law negligence; and thereafter the claims which were the subject matter of the action were confined to those made by the original statement of claim. On this footing time continued to run under s. 5 (1) (a) of the Limitation of Actions Act 1958 in respect of the claims made by the indorsement but not included in the original statement of claim, because the writ no longer covered those claims." (1969) VR, at p 751 (at p594)

14. The substantial questions raised by this appeal, in our opinion, are first, whether the proposed amendment of the statement of claim is within or beyond the range of the indorsement on the writ of summons: second, whether, if the proposed amendment is within the range of the indorsement, an amendment made in pursuance of the summons of 28th August 1967 would involve the deprivation of any right then accrued to the respondents under the appropriate statute of limitations, namely, s. 5 of the Limitation of Actions Act 1958. (at p594)

15. It is important in our opinion first to observe the nature and the consequence of an indorsement on the writ of summons pursuant to O. 3, r. 1, of the Rules of the Supreme Court of Victoria. That rule is in the following terms under the caption "Indorsements of Claim": "1. When to be made. - The indorsement of claim shall be made on every writ of summons before it is issued, and shall
contain a statement sufficient to give notice of the nature of the claim and the cause thereof and of the relief or remedy required in the action, and, in case of non-compliance with this rule, the defendant may apply before appearance to set aside or amend the writ or for particulars."
It is not in identical terms to those of its counterpart in the English Rules of the Supreme Court 1965: but we find no need to found anything in these reasons upon the difference in the Rules. (at p595)

16. The indorsement on the writ not being a statement of claim is not in the nature of a pleading. In our opinion, it should not be construed as such but read for what it is, namely, a notice of the nature of the plaintiff's claim, of the cause thereof and of the relief sought in the action. It suffices if it conveys that information generally and without particularity save where and to the extent to which particularity is indispensable to notify the required elements of the indorsement, e.g. on some occasions identification of the instrument upon which a claim is founded. But insufficiency of the indorsement does not render the writ a nullity. Hill v. Luton Corporation (1951) 2 KB 387; Pontin v. Wood (1962) 1 QB 594 On the other hand, the indorsement marks out the perimeter or range of the area within which the plaintiff may express his claim in a formal fashion in his statement of claim whether as originally filed or as sought to be amended see Cave v. Crew (1893) 62 LJ Ch 530, United Telephone Co. v. Tasker (1888) 59 LT 852, Moore v. Alwill ` (1881) 8 LR Ir (CL) 245; 15 Ir LT 45, at p55 "The statement of claim is the specific way of stating the claim he has endorsed on the writ" per Dowse B. in Moore v. Alwill (1881) 8 LR Ir (CL) 245; 15 Ir LT 45, at p55 (at p595)

17. Where it is sought to strike out a statement of claim on the ground that it asserts a claim not included in the writ or to amend a statement of claim the indorsement of the writ governs or determines whether the statement of claim should be struck out or amended as the case may be. The right given to the plaintiff by O. 20, r. 2, of the Victorian Rules does not in our opinion require any modification of that statement. The alteration, modification or extension of the claim pursuant to this rule must, in our opinion, remain within the area marked out by the indorsement. The basic nature of the claim in respect of which the action has been commenced may not be changed, however much room there is under the Rules for variation in the statement of facts, or the extent of the remedy or relief sought. "A plaintiff may amend his statement of claim once without leave by which I understand that he may widen it or lessen it or express it in better terms, so long as he keeps it in substance consistent with what he claims in his writ" per Dowse B. in Moore v. Alwill (1881) 8 LR Ir 245, at pp 247-248; 15 Ir LT 54, at p 55. Notwithstanding the terms of O. 20, r. 2, a defendant, in our opinion, could properly object to an amended statement of claim which was sought to be justified by reference to that Rule, if it transcended the area of claim notified by the indorsement of the writ by bringing in a new and independent cause of action: see judgment of Palles C.B. in Moore v. Alwill. Such a conclusion is, in our opinion, quite in conformity with the liberalisation in procedure which the introduction of the Judicature Act system is generally claimed to have intended and to have effected. A plaintiff whose statement of claim is struck out as exceeding the indorsement is not thereby deprived of the right to issue another writ. He could have no complaint if his statement of claim had asserted a claim which was outside the indorsement and was statute barred at the date of the delivery of the statement of claim, for as Lord Esher pointed out in Weldon v. Neal (1887) 2 QBD 394 he could not employ his writ inadequately indorsed to cover the claim which had become statute barred. (at p596)

18. Issue of the writ of summons will commence an action so as to satisfy the statute of limitations with respect to all claims which fairly fall within the range of indorsement: See Pontin v. Wood (1962) 1 QB 394 and Hill v. Luton Corporation (1951) 2 KB 387 (at p596)

19. But, while the indorsement of the writ determines the essential nature of the action, it does not define, nor necessarily form part of the definition of the issues for trial. That is done by the pleadings of which the writ does not form part. When a statement of claim has been delivered it will in its finally amended form determine the issues for trial. It will not normally be necessary to refer to the indorsement on the writ of summons to ascertain such issues. Possibly, however, where there is ambiguity in the statement of claim the indorsement may serve to throw light upon the meaning of the statement of claim or of expressions in it. Only inasmuch as the statement of claim can be said to be the initiation of specific issues for trial in the action, can it be properly said that the statement of claim supersedes the indorsement of the writ. (at p596)

20. Order 20, r. 2, of the Rules of the Supreme Court of Victoria which we have already mentioned provides that "whenever a statement of claim is delivered the plaintiff may therein alter, modify or extend his claim without any amendment to the indorsement of the writ". This, in our opinion, has the same effect as 0. 18, r. 15 (2), of the English Rules of the Supreme Court 1965 which says that "A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ, or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned; but subject to that, a plaintiff may in his statement of claim alter, modify or extend any claim made by him the indorsement of the writ without amending the indorsement"; see also Moore v. Alwill (1881) 8 LR Ir 245; 15 Ir LT 54 (at p597)

21. If a statement of claim is amended within the range of the indorsement of the writ there is of course no need to amend the indorsement of the writ. But this does not mean that the indorsement has ceased to have effect. Clearly enough, in our opinion, the ambit of permissible amendment of the statement of claim will be determined by reference to the terms of the indorsement. If the statement of claim, or a proposed amendment of it, should exceed the indorsement, the statement of claim would be struck out or leave to make the amendment would be refused, as the case may be, unless the indorsement can be amended. For the latter amendment leave is necessary: See 0. 28, r. 1, and Moore v. Alwill (1881) 8 LR Ir 245; 15 Ir LT 54 No doubt a defective indorsement may be remedied by a statement of claim, and as we have indicated there may be circumstances in which both indorsement and statement of claim must be read together to determine what is really put forward by the statement of claim: See Pontin v. Wood (1962) 1 QB 594 and Marshall v. London Passenger Transport Board (1936) 3 All ER 83, at p86 We should add that we agree with the propositions listed by Sholl J. in Patterson v. Richards (1963) VR 179, at 185-186, reserving only for further consideration his Honour's qualification in par. 3 (d). (at p597)

22. With these general considerations in mind we turn to the indorsement of the writ in this case. It has not been suggested at any point in the course of the case that the indorsement is defective for want of compliance with the Rules of Court, or that the writ was not issued within the period prescribed by the statute. It contains a sufficient notice of the nature of the claim, of the cause thereof and the relief or remedy required in the action. What was the claim? We think it was that the appellant had suffered financial loss and damage. What was the cause of that loss or damage which the indorsement notified? Surely the failure of the respondents to perform an agreement or alternatively to carry out a duty to audit the trust accounts of the appellant in the years specified and to advise him upon the state of such accounts. The relief or remedy was an order for damages. The appellant was not required to indorse a legal analysis or explanation of his situation nor, in our opinion did he do so. The reference to the Act and Rules thereunder on the indorsement was directed, in our opinion, to the purpose the audit was primarily intended to fulfil and, perhaps, also indirectly to the particular consequences which might ensue upon failure to carry out the audit in a manner conformable to the requirements of the Act and Rules. But even if that reference be read as an expression of the extent of the audit agreed to be made, it would not, in our opinion, alter the basic nature of the action which was an action to recover damages for faulty auditing of the trust accounts in the years specified. (at p598)

23. We turn then to the first question which arises in the appeal. Are the assertions sought to be made by the proposed amendments within the scope of the indorsement of the writ? Basically, there are two assertions. We do not see any need in order to decide this appeal to examine in detail the particular language in which those basic assertions are made nor to enumerate or discuss the various paragraphs in which they were sought to be expressed. The appeal so far as we are concerned touches matters of principle, not to be disposed of by reference to particular expressions in the drafts placed before the primary judge. (at p598)

24. The first claim set up by the amendments, not to be found in the statement of claim itself, is that the respondents agreed to conduct an audit of the appellant's trust accounts for certain financial years. We have no doubt such a formulation of the appellant's claims was within the scope of the indorsement. Indeed, we do not apprehend that it has been contended to the contrary at any stage of the case. (at p598)

25. The second claim sought to be made by amendment is that the respondents were in breach of a contract to audit his trust accounts in respect of part of the financial year 1961. (at p598)

26. It is of course true as a general rule, though not universally true, that an audit is made of the books of account for a complete financial year. The primary judge said of the indorsement in this connexion:

"It alleges breach of contract in auditing and while such an allegation may cover an audit embarked upon but not completed, it gives no indication of a claim that the defendants failed to make any audit at all."

This seems to us, with respect, to place far too much store by the word "in" in the expression "in auditing the trust accounts" when the terms of an indorsement are under consideration. As we have said, the indorsement ought to be read as claiming damages for faulty auditing in breach of contract. We are unable to accept the view that a claim that trust accounts of a solicitor had not been properly audited in a year or years excludes a claim that an audit which ought to have been made was not made or a claim that an audit of such accounts for a specific period of a financial year was either badly made or not made at all. We do not think that any of these claims raise a new case not comprehended by the indorsement. In our opinion, the claim that there was a failure to audit at all whether for a year or a part of a year in particular is within the substance of the indorsement as a manner in which a contract to audit in a year may be broken. Accordingly, in our opinion, the proposed amendments did not travel beyond the scope of the indorsement of the writ. They were therefore in that respect proper to be allowed. Indeed 0. 28 r. 12 in our opinion would have required them to be allowed. Only by treating the indorsement as a pleading and reading it narrowly with considerable technicality might these claims be treated as beyond the scope of the indorsement of this writ. Holroyd Pearce L.J. as he then was observed (in argument) in Pontin v. Wood (1962) 1 QB, at p 607 that the "courts" after making the rules of 1875, "believed that they had for ever shaken off the shackles of technicality". To read this indorsement as excluding any part of the claims to which we have referred does little, in our opinion, to confirm that belief. (at p599)

27. But it is submitted that the approach which we would adopt is erroneous because the appellant had abandoned all claims in respect of faulty auditing except such as are to be found in the statement of claim, and therefore the indorsement should be disregarded because it can add nothing to the statement of claim. This results, so it is said, from the amendment of the indorsement effected, as a matter of law, by the delivery of the statement of claim. The further consequence, it is submitted, and one which in substance the Full Court accepted, is that the writ of summons, which when filed was in truth the commencement of an action for the breach of a contract to audit the trust accounts of the appellant, is no longer to be taken as such. Notwithstanding the commencement of such an action by the writ of summons as indorsed, the submission continued, the action for breach of such a contract must be taken to have been commenced, or more strictly, attempted to have been commenced, at the earliest, at the time the summons for leave to amend the statement of claim was issued. Unless this submission were accepted, there could be no occasion for the application of the rule of practice approved in Weldon v. Neal (1887) 19 QBD 394, because the respondents would not in that case have any vested rights derived from the expiration of the period of limitation before the commencement of the action. (at p600)

28. There is, in our opinion, no authority and certainly none binding on this Court which decides that in a case like the present a plaintiff who does not exhaust in his statement of claim as originally delivered all the ways in which the claim he notified in his indorsement on the writ of summons which commenced his action might be expressed, thereby effectively and as a matter of law abandons all such ways of expressing his claim except that way or those ways which are expressed in that statement of claim. We were not referred to any decision of the Supreme Court to the effect that where a statement of claim does not in terms cover the claim in the indorsement on the writ the result is that the claim has been pro tanto finally abandoned. Patterson v. Richards (1963) VR 179 is certainly not such a case. It would appear incongruous, having regard to the assurances of Bowen L.J., referred to in Pontin v. Wood (1962) 1 QB 594, at p 609, that in any case in which a statement of claim which has been delivered only partly covers the indorsement on the writ the plaintiff should be precluded as a matter of law from amending the statement of claim to make it do so. (at p600)

29. However, we are quite unable to accept the proposition. For our part, we think that the judicature rules did relegate such technicality to the limbo of forgotten things and did provide against the possibility of an injustice occurring by the slip, or for that matter, by the blunder of a legal adviser. It not only lacks authority but is, in our opinion, with due respect to those with whom it finds favour, erroneous. (at p600)

30. When a plaintiff has commenced an action by a writ of summons sufficiently indorsed to embrace a claim in respect of which time had commenced to run under the statute of limitations, that claim, in our opinion, will not be affected by the statute during the pendency of that action, whether or not the formulation of the plaintiff's claim by the pleadings has included allegations appropriate to the enforcement of that claim. If during the course of the proceedings, an amendment of the pleadings is sought in order to embrace that claim, there is no rule of law which precludes such an amendment. The practice referred to in Weldon v. Neal (1887) 19 QBD 394 is irrelevant: in that case the writ was not so indorsed as to include the claim which was statute barred when amendment was sought. If the statment of claim is not amended to set up the claim initiated by indorsement on the writ issued within the period specified by the statute and the proceedings end with a judgment which does not deal with that claim, the plaintiff will of course have recovered nothing in respect of the claim which he has not pursued in the action. If by the time judgment is recovered in the action the relevant period of limitation has expired, it will be too late for the plaintiff to commence another action. (at p601)

31. But, of course, the allowance of the amendment of the statement of claim to set up a claim within the indorsement will be a matter of discretion. The exercise of the discretion may well be influenced by, amongst other circumstances, the stage of the proceedings at which the amendment is sought, by the conduct of the proceedings or by a previous deliberate election by the plaintiff not to pursue the claim. Yet, the overriding requirements of justice may none the less encourage the allowance of an amendment. This would appear to be the purpose of O. 28 r. 1 of the Victorian Rules. (at p601)

32. The basic step in the reasoning of the Full Court in accepting this submission of the respondents that the appellant must be taken to have abandoned part of the indorsement on the writ seems to us to have been "that it is a natural consequence" of the terms of O. 20, r. 2, "that a statement of claim entirely supersedes the statement of the nature of the plaintiff's claim and the cause thereof and the relief or remedy regarded, so that any cause of action raised by the indorsement but not included in the statement of claim must be treated as abandoned or discontinued". In our respectful opinion, such a conclusion does not logically follow from the terms of the rule. We have already indicated our view of the scope and purpose of the rule, the object of which is really to allow what Morris L.J. called a "new explanation" of the complaint denoted by the indorsement on the writ : See Graff Brothers Estates Ltd. v. Rimrose Brook Joint Sewerage Board (1953) 2 QB 318,at p 328 That case does not, in our opinion, lend any support to the respondents' submission. Further, the reasoning in Moore v. Alwill (1881) 8 LR Ir 245; 15 Ir LT 154 and, particularly, the insistence upon the continuing importance of the indorsement on the writ, would refute the submission : See also Cave v. Crew (1893) 62 LJ Ch 530 It does not follow, in our opinion, that because to ascertain the specific issues in an action, resort must be had exclusively to the pleadings, all issues which could properly be raised within the scope of the indorsement, but are not reflected in the statement of claim, have necessarily to be regarded as abandoned. It seems to us that the Full Court gave far too little weight to what we will call the "purview of the writ" principle, illustrated in Cave v. Crew (1893) 62 LJ Ch 530 and that too much was inferred from the scant note of an undefended application in Large v. Large (1872) WN 198 , a case which Palles C.B. in Moore v. Alwill (1881) 8 LR Ir 245; 15 Ir LT 54 called "a very blind case". As we have indicated the basic importance of the indorsement on the writ in determining the possible extent of the issues which can be raised by the pleadings cannot be overlooked in the resolution of this case. (at p602)

33. The Full Court held that because, in their view, a statement of claim is capable under O. 20, r. 2, by way of amendment of the indorsement, of enlarging or restricting the claims which are to be the subject matter of the action, the original statement of claim, in this case,

". . . amended the indorsement of the writ so as to exclude all claims based on contract . . . and thereafter the claims which were the subject matter of the action were confined to those made by the original statement of claim. On this footing time continued to run under s. 5 (1) (a) of the Limitation of Actions Act 1958 (Vict.) in respect of the claims made on the indorsement but not included in the statement of claim because the writ no longer covered those claims". (at p602)

34. But, with due respect, O. 20, r. 2, does not provide that the statement of claim amends the indorsement on the writ. If it did, cases such as Moore v. Alwill, (1881) 8 LR Ir 245; 15 Ir LT 54 and Marshall v. London Passenger Transport Board (1936) 3 All ER 83 could not have arisen. The rule in substance provides no more than that the plaintiff may set out in different ways the claim he has indorsed on the writ and that these changes in the expression of the claim and of the suggested legal explanation of it may be made without amending the indorsement. But of necessity they must be within the indorsement. To say the statement of claim may alter, modify or extend the plaintiff's claim without amendment of the indorsement does not justify the conclusion that when the statement of claim is delivered it does amend it : in particular, it does not justify the conclusion that it amends the indorsement so as to make it no more than co-extensive with the assertions of the statement of claim. With due respect, we are quite unable to accept the Full Court's reasoning or the conclusion to which it is said to lead. In our opinion because the claims sought to be inserted into the statement of claim were within the indorsement, time in respect of them had ceased to run and they were the proper subject of leave to amend. (at p602)

35. The submission and the decision of the Full Court was built up to a considerable extent upon the view taken of a number of decisions, none of which bind this Court, though if they warranted the conclusion drawn from them the Court may well act upon them. We shall therefore briefly comment upon the principal of them. (at p603)

In Large v. Large (1877) WN 198 a plaintiff sought leave to amend the indorsement on the writ and the statement of claim in certain particulars. By the very statement in the brief report in (1877) WN 198 the amendment was within the scope of the indorsement. It was pointe out by the Master of the Rolls that there was no need to amend the indorsement once the statement of claim had been delivered. This truism does not warrant the conclusion that the statement of claim had "superseded" or amended the indorsement so that the indorsement no longer could have any significance or effect in the action. (at p603)

In Cargill v. Bower (1878) 10 Ch D 502 a plaintiff indorsed a claim to have an allotment of shares cancelled on the ground of fraud inducing the application for them and for an indemnity against what he had paid or might yet have to pay for them. But in the statement of claim he did not seek cancellation of the allotment. Fry. J. decided to refuse leave to amend the statement of claim on the ground that the plaintiff had deliberately dropped the claim to rescind the contract to take the shares and that in substance he had elected not to make that claim in the action. The case was decided as a matter of discretion and not specifically as far as we can see in relation to the Rules of Court. (at p603)

In Lewis v. Durnford (1907) 24 TLR 64 a writ was indorsed to claim a penalty for breach of a contract of service, and an injuction to restrain breach of the contract. The statement of claim sought only an injunction. The indorsed remedies were in fact inconsistent, though the indorsement for that reason was not irregular. The plaintiff had actually elected between the remedies, as clearly he was entitled to do. The defendant unsuccessfully sought to confine the plaintiff to acceptance of a penalty. In our opinion, the observations on Cargill v. Bower (1878) 10 Ch D 502 in this case are not accurate. (at p603)

In Cellular Clothing Coy. Ltd. v. G. White &Co. Ltd. (1952) 70 RPC 9 a writ was indorsed seeking an injunction for infringement of a trade mark and an injunction to restrain passing off. The plaintiff, believing itself not to have a case for infringement, deliberately chose to limit its statement of claim to passing off. An application to amend at a late stage in the proceedings was refused, the indorsement of writ not being considered sufficient warrant at that stage to wholly re-orient the case. Harman J. had this to say (1952) 70 RPC at p12:

"It is very rare that one refuses leave to amend on terms, but here, as Mr. Levy very candidly said, he decided, when he issued his statement of claim, to abandon infringement because he felt he had no case for it. Once abandoned, the claim remains abandoned, and it does not lie in the mouth of the plaintiff to say 'Now I should like to put it back again'. If it be as I think it probably is, a matter of discretion, I refuse leave, because the plaintiffs, having deliberately taken the course they did and announced to the world and to the defendants that the only particulars which they were going to rely upon were such and such, now sought to rely on other particulars altogether, which either were, or ought to have been, within their knowledge before they issued their writ, and, indeed, were the reason, so it is said, why the writ was originally issued. In my judgment, it would be quite wrong to allow an amendment of this sort under those circumstances."

We find no support in this decision for the respondents' proposition. (at p604)

In Marshall v. London Passenger Transport Board (1936) 3 All ER 83 an indorsement, defective because it did not notify the required elements of the plaintiff's action, was developed and complemented by the statement of claim, from which combination the nature of the action was apprehended. A new claim disparate from the nature of the action so discovered was rejected as outside the scope of the indorsement as supplemented by the statement of claim. We would regard this decision as lending support to the contrary of the respondents' submission. (at p604)

41. Finally, the respondents placed great reliance on the decision of the Court of Appeal in Hall v. Meyrick (1957) 2 QB 472 The full terms of the indorsement of the writ in that case are not reported but part thereof appears in the judgment of Hodson L.J. The argument in chief on behalf of the appellant as reported does not appear to have involved any consideration of the indorsement of the writ but in reply counsel for the appellant is reported as saying "If the statement of claim puts forward claims which are not stated in the writ, it is the statement of claim and not the writ which must be looked to" (1957) 2 QB, p 474 However, Hodson L.J. in giving his reasons for judgment said :

"I come back to the point which was put first in this appeal. That depends on how this case was pleaded. The writ as endorsed was for damages for negligence 'and failure to use reasonable skill and diligence as solicitor for the plaintiff' ; but, when the statement of claim was delivered, the form of action was made plain, and according to the provisions of O. 20, r. 4, in my opinion, from that moment the statement of claim, and the statement of claim only, is the document to be looked at in order to see what it was that the plaintiff was claiming." (1957) 2 QB, at p 476 (at p605)

42. The action had been fought through to the point where the trial judge rejected the plaintiff's claim as the survivor of husband and wife who had jointly retained the professional services of the appellant, a solicitor. He then allowed an amendment setting up a retainer solely by the plaintiff and later felt bound to maintain his decision giving leave to amend though that claim of the plaintiff would have been statute barred when the amendment was allowed. The indorsement on the writ was at best ambiguous. The statement of claim complemented and explained it. It was then a case in which in fact the statement of claim contained the claim which was indorsed. So regarded, the case offers, in our opinion, no support for the respondents' submission. But Hodson L.J. appears to have thought that "the provisions of O. 20, r.4" necessitated the conclusion that only the statement of claim need be looked at to ascertain what the plaintiff was claiming. Of course, if no question of amendment has to be decided, but only what are the issues to be tried, it is correct, in our opinion, to look only to the statement of claim. No reliance seems to have been placed by the respondents on the indorsement of the writ as containing a claim based on a separate retainer. (at p605)

43. In our opinion, Hodson L.J. does not appear to have been dealing with a case in which the amendment was sought to be justified by the terms of the indorsement on the writ. We conclude that his Lordship did not intend to say and did not say that if it was claimed that the amendment was within the indorsement of the writ, the indorsement could be ignored and only the statement of claim looked at. So understood we do not regard his Lordship's remarks as supporting the respondent's submission : but if we are in error in our apprehension of what his Lordship said, and he was intending to say that once a statement of claim has been delivered, no claims indorsed on the writ which are not reflected in the statement of claim can be the subject of an amendment, because the writ must be regarded as so amended by the delivery of the statement of claim that such other claims as a matter of law are abandoned and the action regarded as not having been commenced in respect of them, then, with due respect, we would be unable to accept his Lordship's view. Neither of the other Lord Justices who participated in the case expressed any like views nor did wither expressly aggree with the reasoning of Hodson L.J. (at p606)

44. We have in the course of these reasons referred to Graff Brothers Estates Ltd. v. Rimrose Brook Joint Sewerage Board (1953) 2 QB 318 and Pontin v. Wood (1962) 1 QB 594 There is no need for us further to discuss them. Neither case supports the respondent's submission. In each case we prefer the approach adopted to that which the respondents suggest for the resolution of this case. (at p606)

45. To summarize our view we conclude that the facts sought to be alleged by the appellant by way of amendment of the statement of claim were within the scope of the indorsement on the writ of summons : that they did not raise in relation to that indorsement a new claim : that the issue of the writ of summons effectively prevented the statute of limitations from barring the appellant's claim which the facts sought to be added to the statement of claim put forward : that the delivery of the statement of claim did not amend the indorsement on the writ of summons and did not render the writ ineffective to prevent the barring of the appellant's claim against the respondents for failure in breach of contract properly to audit his trust accounts : that there was no impediment in law to the allowance of the proposed amendments : that the primary judge and the Full Court had a discretion to allow or refuse the amendments : that the reasons of the Full Court indicate that the Court did not exercise any such discretion because of its view of the legal effect of the Rules of Court and the delivery of the statement of claim : that this Court should exercise the discretion with respect to amendment of the statement of claim by granting leave to make them. (at p606)

46. In our opinion the appeal should be allowed. (at p606)

KITTO J. I have had the advantage of reading the judgment of Owen J. I agree in it and have nothing to add. (at p606)

MENZIES J. I agree entirely with the judgment of Owen J. (at p606)

OWEN J. This appeal by leave comes from the Full Supreme Court of Victoria which dismissed an appeal and allowed a cross appeal from Little J. who, except for a relatively minor amendment, had refused an application by the appellant (the plaintiff) for leave to amend his statement of claim in an action for damages brought by him against the defendants, who are practising accountants. (at p606)

2. The action was instituted by the plaintiff, a bankrupt, and a Mr. Ogilvie, the official receiver of his estate, but the latter later filed a notice of discontinuance and his name was struck out of the writ and statement of claim. In these circumstances questions will obviously arise at some stage of the proceedings as to the competency of the plaintiff to prosecute the action, but at the request of counsel for both parties Little J. and the Full Court refrained from dealing with that aspect of the case in considering the application for amendment and we decided to follow the same course on the appeal. (at p607)

3. The question for consideration arises in this way. The plaintiff's writ was issued on 7th December 1966. Pursuant to O. 3, r. 1, of the Supreme Court Rules it contained indorsements, one of which was a claim "for breach of contract in auditing the trust books of the plaintiff in the years 1958 to 1961 inclusive in accordance with the requirements of the Legal Profession Practice Acts and the Rules made thereunder and/or in advising the plaintiff generally with respect thereto". The other indorsement claimed "further or alternatively" that the defendants had negligently breached a statutory duty said to have been "owed by the defendants to the plaintiff under the Legal Profession Practice Acts and the Rules made thereunder in the course of examining and auditing the trust books of the plaintiff in the said years". The writ went on to require pleadings. (at p607)

4. The Rules of the Supreme Court provide that when pleadings are required the statement of claim is to set out the material facts on which the plaintiff relies and the relief which he claims and, by O. 20, r. 2, "whenever a statement of claim is delivered the plaintiff may therein alter, modify or extend" the claims made in the indorsement on the writ without amending that indorsement. (at p607)

5. The statement of claim was delivered in March 1967. It alleged that the defendants had been guilty of breaches of statutory duty said to have arisen from the appointment of the defendants by the Council of the Law Institute of Victoria to audit the plaintiff's trust accounts for the year ended on 30th June 1960 "including a check audit of the current state of the said account conducted on and between the 10th and 20th days of December 1960". Alternatively it alleged that the defendants had been negligent in carrying out these audits. The position then was that the statement of claim departed from the indorsement on the writ by omitting all claims based on contract, and also any claim relating to the year 1961, and adding a claim in negligence. In August 1968 a summons was taken out by the plaintiff seeking leave to amend the statement of claim. The proposed amendments alleged that a contract had been made between the plaintiff and the defendants in 1955 under which the defendants had agreed for reward to act as auditors of the plaintiff's trust accounts and advise him thereon and that they had breached that contract by failing to exercise due care in carrying out the contract. It was sought also to include an allegation that in 1961 there had been a breach of the contract alleged. In other words, the plaintiff sought leave to introduce into the statement of claim claims in contract which, in my opinion, had been sufficiently covered by the indorsement on the writ but which had not been charged in the statement of claim. At the date of the summons for leave to amend, the claims based upon contract, had a writ then been issued, would have been barred by the Limitation of Actions Act 1958 (Vict.) and it was for this reason that the Full Court, applying the well-known and oft applied passage in the judgment of Lord Esher in Weldon v. Neal (1887) 19 QBD, at p 395, refused to allow the amendments. In that case his Lordship had said:

"We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so."

In my opinion their Honours were right in thinking that in the light of O. 20, r. 2, and of a number of authorities to which they referred, it was to the statement of claim that regard should be had in determining what were the claims which the plaintiff wished to litigate although, if no question of the Limitation of Actions Act had arisen, it might well have been that the amendments sought would have been granted. But I agree with their Honours that in a case in which an amendment to a statement of claim is sought which raises a cause of action of a kind different to that which is alleged in the statement of claim and it appears that at the date when the amendment is sought that cause of action would be statute barred if a writ were then issued, the amendment should not be allowed except perhaps in what Lord Esher had described as "very peculiar circumstances" and no one has suggested that any such circumstances existed in the present case. The reasons which led their Honours to refuse the proposed amendment were that although the indorsements on a writ may be wide enough to cover a number of causes of action, if the statement of claim omits to rely upon one of them the cause of action so omitted is to be taken to have been abandoned ; and if in such circumstances the plaintiff later seeks the leave of the Court to amend his statement of claim in order to re-introduce into the proceedings the cause of action which he has thus abandoned he will not, except in "very peculiar" circumstances, be allowed to do so if, at the date when he seeks to re-introduce it, a writ issued in respect of that cause of action would have been statute barred. (at p609)

6. The result of omitting from a statement of claim a cause of action which was covered by the writ is correctly stated in Odgers on Pleading and Practice, 19th ed. (1966), at p. 171 as being that, ". . . if a plaintiff in his statement of claim omits all mention of a cause of action or a claim for relief which is stated in his writ, he will be deemed to have abandoned it". And again, at p. 179, the pleader is warned that he should "remember that a statement of claim supersedes the writ ; hence if some special form of relief be claimed on the writ, and not in the statement of claim, it will be taken that so much of that claim is abandoned". In support reference is made to Harries v. Ashford (1950) 1 All ER 427 To the same effect is a statement in Bullen and Leake's Precedents of Pleading, 9th ed. at p. 33. After pointing out that under the then English rule corresponding to the Victorian O. 20, r. 2, a plaintiff may alter, modify or extend the claim indorsed on the writ without amending that indorsement, the learned editors go on to say, "On the other hand, if the plaintiff when drafting his statement of claim omits all mention of a cause of action or a claim for relief which is stated on his writ, he will be deemed to have abandoned it (Cargill v. Bower (1878) 10 Ch D 502, at p 508; followed in Lewis v. Durnford (1907) 24 TLR 64)" Again, in Halsbury's Laws of England, 3rd ed., vol. 30, at pp. 34-35 it is said,

"Where a plaintiff in his statement of claim omits part of what he claims in his writ, he will be deemed to have abandoned that part (Harries v. Ashford (1950) 1 All ER 427, following Cargill v. Bower (1878) 10 Ch D 502), and he may be refused leave to amend the statement of claim to restore his earlier claim (Cellular Clothing

Co. Ltd. v. G. White &Co. Ltd. (1952) 70 RPC 9"

In my opinion the passages which I have quoted and the cases cited therein support the view which the Full Court took that the plaintiff was to be regarded as having dropped his claim for breach of contract by omitting it from his statement of claim. They considered also that to allow him to re-introduce it by amendment at a time when it would have been statute barred had he then begun an action to enforce it would not be a proper exercise of their discretion. This view is, to my mind, amply supported by authorities which are directly in point and I need refer only to some of them. The first is Harries v. Ashford (1950) 1 All ER 427 In that case the facts were that on 9th August 1944 one H was killed in an accident as the result of a collission between a car in which he and his wife were travelling and another vehicle. In the collision his wife suffered personal injuries. On 7th August 1945 a writ was issued in which H's widow and another person, described in the writ as the administratrices of H's estate, and H's widow in her personal capacity were joined as plaintiff's, the administratrices claiming damages under the Fatal Accidents Acts 1846-1908 (U.K.) in respect of the death of H and the widow claiming damages under the same Acts as well as for her personal injuries, At all material times s. 3 of the Fatal Accidents Act of 1846 was in force. It required that every action brought to recover damages under that Act should be commenced within twelve months after the death of the deceased and it was not until the passing of the Law Reform (Limitation of Actions) Act in 1954 that s. 3 of the Act of 1846 was amended to extend the period of limitation from twelve months to three years. In 1946 the statement of claim was delivered and it limited the claim under the Fatal Accidents Acts to that made by the administratrices, omitting the widow's claim to recover under those Acts and limiting her claim to damages for her personal injuries. It appeared that letters of administration in the estate of H had not been granted until 9th August 1945, two days after the issue of the writ. In December 1949 the plaintiffs applied (a) to strike out the names of the administratrices from the action on the ground that they had been improperly joined since at the date of the writ letters of administration had not been granted, and (b) to amend the statement of claim by adding a claim by the widow under the Fatal Accidents Acts. By this time, of course, more than twelve months had elapsed since H's death. The Court held that an amendment to enable the widow to claim under those Acts should not be allowed. The judgment of Asquith L. J. proceeded on the basis that, since the statement of claim had omitted the widow's claim to recover under the Fatal Accidents Acts, that cause of action must be taken to have been abandoned and that, having regard to the time which had elapsed between the delivery of the statement of claim and the application for leave to amend, the application should be refused. His Lordship made no express reference to the fact that the statutory period of limitation had expired at the time of the application to amend, but Roxburgh J., the other member of the Court, plainly based his decision on it. What he said was,

"The effect of the statement of claim in this case was to abandon the claim which it is now sought to restore to the statement of claim. If that claim has been abandoned, this application must be an application to raise the claim de novo, and I should hesitate long before allowing someone to raise a claim de novo by amendment if at that time he could not successfully raise that claim by an original action." (1950) 1 All ER at p 429

In a more recent case, Hall v. Meyrick (1957) 2 QB 455, the facts were that the plaintiff and a man named Hall, whom she later married, had instructed the defendant, a solicitor, to prepare their wills, each intending to confer benefits on the other. This he did. The solicitor had been informed by them that they might marry but he did not advise them that the marriage would revoke the wills. After they had married Hall died, and, not having made another will after his marriage to the plaintiff, he died intestate. The plaintiff sued the solicitor for damages for negligence. The indorsement on the writ stated that the defendant had failed "to use reasonable skill and diligence as solicitor for the plaintiff" and this appears to me to be a clear enough statement that she had retained the defendant as her solicitor. The statement of claim, however, alleged a joint retainer of the defendant by the plaintiff and by Hall and this claim was rejected by the trial judge. The plaintiff thereupon applied for leave to amend the statement of claim by alleging that she had retained the defendant but at the date of her application to amend the period set by the statute of limitations had expired. Nevertheless the amendment was allowed by the trial judge and judgment was given by him for the plaintiff. On appeal it was held that the amendment should not have been allowed since the amended cause of action was one which would have been statute-barred had a writ been issued at the time when the amendment was sought. In dealing with that question, Hodson L. J. said (1957) 2 QB, at p 476:

"That depends on how this case was pleaded. The writ as endorsed was for damages for negligence 'and failure to use reasonable skill and diligence as solicitor for the plaintiff' ; but, when the statement of claim was delivered, the form of action was made plain, and according to the provisions of Ord. 20, r. 4, in my opinion, from that moment the statement of claim, and the statement of claim only, is the document to be looked at in order to see what it was that the plaintiff was claiming."

Order 20, r. 4 of the English Rules then in force corresponded with O. 20, r. 2 of the Victorian Rules. (at p612)

His Lordship went on (1957) 2 QB, at p 477:

"The effect of that amendment is to substitute the allegation that there was a separate retainer of the solicitor by the plaintiff as an alternative to the joint retainer which had originally been alleged. The point at once emerges that, if a separate contract is alleged between the plaintiff and the solicitor, that is an entirely new contract, a different contract from that which was originally pleaded, and, having regard to the lapse of time, the defence of the Statute of Limitations is, on the face of it, available to the defendant if he so chooses."

And he added (1957) 2 QB, at p 479:

"The general rule is quite clear, that the plaintiff will not be allowed to amend by setting up fresh claims in respect of causes of action which since the issue of the writ have been barred by the Statute of Limitations. That principle was declared in no uncertain terms by Lord Esher in Weldon v. Neal."

For these reasons he held that the amendment should not have been allowed. Parker L. J. took the same view, saying (1957) 2 QB, at p 481:

". . . once it appeared that the new claim was statutebarred, and the defendant objected to the amendment on that ground, I think the judge was bound, in the proper exercise of his discretion, to refuse the amendment."

And Ormerod L. J. said (1957) 2 QB, at p 482:

"I agree that this appeal should be allowed on the ground that the original instructions having been separate and independent, as the judge, in my view, has properly found, the case as originally pleaded could not stand. I agree, for the reasons which have already been given by my brothers, that it was a wrongful exercise of his discretion for the judge to allow the pleadings to be amended in such a way as to cause to be pleaded a cause of action which was, at the time of the amendment, statute-barred."

I think it necessary to refer only to one other case, which was decided by the Full Supreme Court of New South Wales, and which appears to me to be in point notwithstanding the fact that in New South Wales a writ need not mention any cause of action. As Jordon C. J. pointed out in Horton v. Jones (No. 2) (1939) 39 SR (NSW) 305, however, that fact makes no difference to the rule that has been applied in proceedings under the Judicature Act with regard to the allowance or otherwise of amendments to a plaintiff's pleading in cases to which the principles laid down in Weldon v. Neal (1887) 19 QBD 394 applies. The case to which I refer is O'Grady v. Botany Wools (Australia) (1964) 64 SR (NSW) 359 There the plaintiff had issued a writ for damages against the defendants, which contained no statement of any cause of action. The plaintiff declared in negligence and, after the lapse of a period of three years, he sought leave to amend his declaration by adding a count based upon a breach of statutory duty. If a writ had been issued at the date of the application for amendment, the cause of action sought to be added would have been statute barred by certain provisions of the Workers' Compensation Act. The amendment was allowed by the judge to whom the application was made and an appeal was successfully brought to the Full Court where the principal judgment was delivered by Walsh J. His Honour summed up the position in a passage with which, with respect, I entirely agree. He said (1964) 64 SR (NSW), at p 367:

"For the purposes of deciding whether an amendment should be refused because at the time it is sought the statutory, time limit has expired, then the plaintiff is treated as having already commenced his action in respect of the claims contained in the declaration, and those claims only, and he is not permitted to introduce new claims by amendment, for this would be regarded as being in substance, although not in form, the bringing of a new action for claims which are already barred by statute."

I would only add that I do not find any injustice in applying what Lord Esher described as "the settled rule of practice". A statement of claim or, in New South Wales, the plaintiff's declaration identifies the case that the defendant is called upon to answer. He is entitled to assume that any other and different claim which is not included in the plaintiff's pleading but which the writ is wide enough to cover has been dropped from the action and if, at some later date, the plaintiff seeks to re-introduce it he ought not in fairness to the defendant be allowed to do so if by that time the claim would have been statute barred had an action then been begun to enforce that cause of action. (at p613)

8. In my opinion the appeal should be dismissed. (at p613)

Orders

Appeal dismissed with costs.