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…
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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AGLC
Renowden v McMullin [1970] HCA 24
Case
[1970] HCA 24
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the dispute between Renowden and McMullin concerning the interpretation of a will. The primary issue before the Court was whether a specific bequest of shares in a company, which had undergone a capital reconstruction prior to the testator's death, should be construed as referring to the original shares or the new shares issued as a result of the reconstruction.
The Court was required to determine the testator's intention regarding the subject matter of the bequest in light of the company's capital changes. Specifically, the legal question was whether the bequest lapsed due to the destruction of the subject matter, or if it should be interpreted as referring to the shares that replaced the original ones.
The majority of the Court reasoned that the testator's intention, as evidenced by the will, was to bequeath the shares held by him in the company at the time of his death. They applied the principle that a bequest of shares in a company should be construed as referring to the shares as they exist at the time of the testator's death, even if the company has undergone capital reconstruction, provided the identity of the company and the testator's holding in it remain substantially the same. The Court found that the capital reconstruction had not fundamentally altered the nature of the testator's investment in the company, and therefore the bequest was not adeemed.
The appeal was dismissed, with the Court upholding the decision of the lower court.