Riverstone Asset Pty Ltd v Carlo Ammendolea as in his own capacity and as Trustee for the Ammendolea Trust
[2012] WASC 272
•1 AUGUST 2012
RIVERSTONE ASSET PTY LTD -v- CARLO AMMENDOLEA as in his own capacity and as Trustee for the Ammendolea Trust [2012] WASC 272
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 272 | |
| Case No: | CIV:1078/2010 | 23 APRIL 2012 | |
| Coram: | ACTING MASTER CHAPMAN | 1/08/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Defendant added Leave to amend writ of summons granted Leave to amend statement of claim refused | ||
| B | |||
| PDF Version |
| Parties: | RIVERSTONE ASSET PTY LTD CARLO AMMENDOLEA as in his own capacity and as Trustee for the Ammendolea Trust |
Catchwords: | Practice and procedure Joinder of party Amendment of writ of summons Amendment of statement of claim |
Legislation: | Rules of the Supreme Court 1971 (WA), O 18 r 6(2)(b), O 21 r 5 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
CARLO AMMENDOLEA as in his own capacity and as Trustee for the Ammendolea Trust
Defendant
Catchwords:
Practice and procedure - Joinder of party - Amendment of writ of summons - Amendment of statement of claim
Legislation:
Rules of the Supreme Court 1971 (WA), O 18 r 6(2)(b), O 21 r 5
Result:
Defendant added
Leave to amend writ of summons granted
Leave to amend statement of claim refused
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr M C Hotchkin
Defendant : Mr J D Maclaurin
Solicitors:
Plaintiff : Hotchkin Hanly
Defendant : Middletons
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 ACTING MASTER CHAPMAN: On 23 April 2012, I had before me two chamber summonses. The first in time was filed by the defendant on 21 March 2012 seeking an order that the plaintiff give security for the defendant's costs. The second was filed by the plaintiff on 20 April 2012 seeking to join a second defendant and consequential amendments to the writ of summons and the statement of claim.
2 I heard argument in relation to both applications and delivered extempore reasons granting the defendant's application and ordering the plaintiff to give security for the defendant's costs. I stayed the second applicant until such time as the security was given. On 26 June 2012, the security was given. In relation to the plaintiff's application, I have been advised no further verbal submissions are required. Accordingly, I give my reasons based on the oral and written arguments presented at the special appointment.
3 Several versions of the minute of proposed amended writ of summons have been filed. However, at the special appointment, the version filed on 23 April 2012 was relied upon. The amended chamber summons of the plaintiff filed on 20 April 2012 states, in par 1:
1. Pursuant to Order 18 rule 6 of the Rules of the Supreme Court1971 the Plaintiff has leave to join Susanna Lisa Ammendolea as a Second Defendant to these proceedings.
4 Order 18, r 6(2)(b) of the Rules of the Supreme Court1971 (WA) reads:
Order 18 - Causes of action, counterclaims and parties
...
6. Misjoinder and nonjoinder of parties
...
(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -
...
(b) order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party,
(Page 4)
- but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.
5 At pars 14 to 16 of the outline of written submissions, the defendant submits:
14. The indorsement of claim in the minute of proposed amended writ of summons dated 27 March 2012 does not set out the nature of any claim against the proposed second defendant, nor does it provide any basis for the cause of action or relief which is to be sought against the proposed second defendant.
15. The claims which are presently contained in the minute of proposed amended statement of claim in relation to section 89 of the Property Law Act 1969 (WA) are therefore beyond the scope of the indorsement of claim.
16. Accordingly, even if the plaintiff is granted leave to make the amendments proposed in its minute of proposed amended writ of summons dated 27 March 2012, those amendments would not provide a basis to join the proposed second defendant.
6 I agree with that submission and accept the defendant's proposition that leave to amend a writ will not be granted in a form which is defective.
7 However, the minute filed on 23 April 2012 has been amended in such a way as to rectify the defect. This is conceded by counsel for the defendant. Having considered the materials before me, I am satisfied that it is necessary to join the second defendant to ensure that all matters in dispute may be effectively determined and give the plaintiff leave to amend the writ in the form of the minute filed on 23 April 2012.
8 Paragraph 2 of the amended chamber summons of the plaintiff filed on 20 April 2012 states:
2. Pursuant to Order 21 Rule 5 of the Rules of the Supreme Court1971the Plaintiff has leave to amend the Writ of Summons and Statement of Claim in terms of the Minute of Proposed Amended Writ of Summons and Minute of Amended Statement of Claim attached to this Chamber Summons.
9 At pars 8 to 11 of its outline of written submissions, the defendant submits:
8. Whilst reserving the plaintiff's rights in relation to the proposed amended statement of claim in the event leave is granted, the plaintiff submits that the minute of proposed amended statement of claim is defective in that these pleas of the (now) alleged
- agreement are inadequate as they do not plead the sufficient material facts for the alleged agreement.
- 9. That is, the plea at paragraph 6 does not plead sufficient material facts as to:-
(a) where or how the alleged agreement was entered into;
(b) how it is alleged to be an agreement 'with each of' Mr Natoli and the Defendant;
(c) further to (b) above, there is no sufficient plea of material facts as to how it is the agreement was entered into with the plaintiff - ie, by whose and through whose conduct (and with what authority) the plaintiff entered into the alleged agreement with the plaintiff company.
10. All these matters should be pleaded as material facts. The particulars provided in the paragraph are not sufficient to cure such defects in the plea (nor do such particulars in fact address all such requirements of pleading the agreement).
11. The need for any agreement to be properly pleaded is highlighted by the ambiguity as to the nature of the payment, on what terms if any such a payment was made and in this regard, the significance and legal effect of various conversations previously referred to.
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