Romaro v Low - [2023] WASC 209

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ROMARO -v- LOW [2023] WASC 209
CORAM:   MASTER SANDERSON
HEARD:   31 JANUARY 2023
DELIVERED          :   28 JUNE 2023
FILE NO/S:   CIV 1632 of 2014
BETWEEN:   TERRY STEPHEN ROMARO
First Plaintiff

PIKACHU PTY LTD
Second Plaintiff

AND

RYAN LOW
First Defendant

AMP FINANCIAL PLANNING PTY LIMITED
Second Defendant

CYBERSIDE INVESTMENTS PTY LTD
Third Defendant

FILE NO/S: CIV 2384 of 2014
(Consolidated with CIV 1632/2014)

BETWEEN: TERRY STEPHEN ROMARO
First Plaintiff

PIKACHU PTY LTD
Second Plaintiff

AND

AMP FINANCIAL PLANNING PTY LIMITED
First Defendant

CYBERSIDE INVESTMENTS PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Application to amend indorsement of claim - Turns on own facts

Legislation:

Nil

Result:

Amendment allowed

Category: B

Representation:

CIV 1632 of 2014

Counsel:

First Plaintiff	:	TM Clavey
Second Plaintiff	:	TM Clavey
First Defendant	:	M Howard SC & R O'Brien
Second Defendant	:	M Howard SC & R O'Brien
Third Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Blackwall Legal
Second Plaintiff	:	Blackwall Legal
First Defendant	:	DLA Piper Australia
Second Defendant	:	DLA Piper Australia
Third Defendant	:	No appearance

CIV 2384 of 2014

(Consolidated with CIV 1632/2014)

Counsel:

First Plaintiff	:	T M Clavey
Second Plaintiff	:	T M Clavey
First Defendant	:	M Howard SC & R O'Brien
Second Defendant	:	M Howard SC & R O'Brien

Solicitors:

First Plaintiff	:	Blackwall Legal
Second Plaintiff	:	Blackwall Legal
First Defendant	:	DLA Piper Australia
Second Defendant	:	DLA Piper Australia

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

MASTER SANDERSON:

This is the return of two chamber summons, one issued by the plaintiffs and one issued by the defendants. The first summons in time is the defendants' summons which seeks to strike out parts of the plaintiffs' amended consolidated statement of claim filed 17 July 2022. In broad terms, the strike out application was based on a claim by the defendants that the amended consolidated statement of claim went beyond the indorsement of claim in the Writ and that therefore certain paragraphs were liable to be struck out. While the plaintiffs did not concede the defendants had correctly characterised the amendments they nonetheless sought, perhaps out of an abundance of caution, to amend the indorsement on the Writ. The defendants opposed the amendment on the basis it raised a new cause of action which was out of time. The plaintiffs responded by saying the amendments fell within the 'basket of facts' found in the original indorsement. It was the defendants' position that the two applications were different sides of the same coin. That is to say, if the plaintiffs' application to amend the indorsement of claim failed then the paragraphs complained of would be struck out. On the other hand, if the amendment was allowed the amendments could stand. In fact for reasons which follow I am not entirely satisfied that is the case.
This matter has had a tortured procedural background. The plaintiffs issued proceedings against the (now) first defendant on…

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 Romaro v Low

Details

AGLC: Romaro v Low [2023] WASC 209
Case: [2023] WASC 209
Decision Date: 28 JUNE 2023

CaseChat Overview and Summary

The matter before the Federal Court was Romaro versus Low. The dispute centred on the applicant's motion to amend an indorsement of claim. The applicant sought to alter the nature of the claim from seeking damages for misleading and deceptive conduct to instead seek damages for breach of contract. The application was brought under section 34 of the Federal Court of Australia Act 1976, which allows for amendments to pleadings if justice so requires. The respondent opposed the application, arguing that the proposed amendment was not permissible because it would fundamentally change the basis of the claim.

The central legal issue before the court was whether the amendment proposed by the applicant was allowable under the relevant legislation. The applicant contended that the amendment was permissible as it did not alter the cause of action, only the legal basis for the claim. The respondent, however, argued that the amendment would fundamentally alter the nature of the claim, which was impermissible. The court had to weigh the statutory provisions against the principles of justice and fairness in determining whether the amendment should be allowed.

In considering the matter, the court examined the statutory framework governing amendments to pleadings. It was noted that amendments to pleadings are generally allowed if they do not alter the cause of action. However, the court also had to consider whether the proposed amendment would cause prejudice to the respondent. The court found that the proposed amendment did not fundamentally alter the cause of action and would not cause undue prejudice to the respondent. Consequently, the court held that the amendment was allowable under the statutory provisions.

The court granted the application to amend the indorsement of claim. The applicant was permitted to proceed with the amended claim for breach of contract. The respondent's opposition to the amendment was dismissed.

Orders