Ronald Harry Forster v Eva Florence Swain, Brian Anthony Lamshed, Jeremy James Moore, Alan Swain and Brian James Swain (No. 2) No. SCGRG 89/1682 Judgment No. 3737 Number of Pages 4 Practice Damages

[1992] SASC 3737

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Practice - practice and procedure - application after trial and judgment to amend statement of claim to plead new causes of action against parties against whom no substantive relief had previously been claimed - those parties had conducted the litigation on that basis - no reason for the proposed new causes of action not being pleaded before trial - relevant prejudice established - application refused.
Damages - general principles - Damages sought in addition to specific performance of agreement for sale and purchase of land - decree made for specific performances - damages sought for losses occasioned by delay in performance not in substitution of specific performance - damages awarded and to be assessed by a Master.
Practice - practice and procedure - application by some defendants for leave to issue contribution notices against other defendants after trial and judgment - no reason why notices not issued before trial - relevant prejudice - application refused.
Supreme Court Rules 1987, R.53.01(c) and R.53.O9, Mattschoss v. Pedler (No. 2) (1955) 14 LSJS 294, Gilbertson v. State of South Australia and Anor. (No. 2) (1976) 72 LSJS 491, Tildesley v. Harper (1878) 1O Ch.D. 393 at p.397 and Spry: Equitable Remedies, 4th ed. at p.628 referred to. Real Property Act1886 s.191x and Supreme Court Act 1935 s.3O.

HRNG ADELAIDE, 2, 9, 24 June 1992 #DATE 2:12:1992
Counsel for plaintiff:                 Mr P A Mcnamara
Solicitors for plaintiff:                Theo Madis and
   Associates
Counsel for defendant E Swain:         Ms A Simpson
Solicitors for defendant E Swain:        Herve and Co
Counsel for defendants Lamshed and Moore:   Ms N J Detmold
Solicitors for defendants Lamshed and Moore: Treloar and Treloar
Counsel for defendants A and B Swain:    Mr G A Britton
Solicitors for defendant A and B Swain: Lindleys

ORDER
Judgment for plaintiff.

JUDGE1 MULLIGHAN J I refer to my reasons for judgment delivered on 22nd May 1992 and to the terms of the judgment entered on 2nd June 1992 which include that the agreement for sale and purchase of the subject land and the Deed be specifically performed and carried into effect. The first defendant died before judgment was entered. Her executors and the second and third defendants, the executors of the estate of the late Mr. Swain ("the executors"), have complied with the judgment and the respective obligations of the parties to agreement and deed have been performed. 2. The plaintiff's claim for damages against the first defendant and the executors was adjourned for further consideration. When the action was called on for further hearing, Mr. McNamara, for the plaintiff, pressed that claim and also applied to amend the statement of claim so as to include a claim for compensation against the fourth and fifth defendants ("the grandsons") pursuant to s.191x of the Real Property Act 1886 on the ground that the caveat was lodged wrongfully and without reasonable grounds and further for damages for wrongfully processing or inducing a breach of contract. 3. I was informed that the costs of the plaintiff, the first defendant and the executors amount to approximately the amount of the residue of the estate of the late Mr. Swain. On 24th June I made orders for costs to the effect that the plaintiff have his costs against all defendants except the first defendant and that the first defendant have her costs against the other defendants. Those costs are to be borne, firstly against the balance of the purchase moneys to be paid by the plaintiff upon the settlement of the sale and purchase of the subject land, secondly from the unadministered estate of the late Mr. Swain (if any) and thirdly by the grandsons. The application by the executors for their costs against the grandsons was reserved for further consideration. Also the application by the executors for leave to file and issue a contribution notice against the grandsons was reserved for further consideration. 4. First, I deal with the plaintiff's application for leave to amend the statement of claim to institute claims against the grandsons for compensation pursuant to s.191X of the Real Property Act and damages for wrongfully procuring or inducing a breach of contract. His application was not made until after the trial and the judgment which I have mentioned had been entered. Of course that judgment did not finally dispose of all issues raised by the pleadings. The claim for damages against the executors remained unresolved. The power to grant leave even at this stage of the proceedings cannot be doubted: R.53.01(c) and R.53.09 of the Supreme Court Rules 1987, Mattschoss v. Pedler (No.2) (1955) 14 LSJS 294 and Gilbertson v. State of South Australia and Anor. (No.2) (1976) 72 LSJS 491. In order to dispose of this application, I have not found it necessary to have recourse to the new rules which were introduced on 6th July 1992 by the Supreme Court Rules 1987 Amendment No. 32 and which provided even more substantial obstacles to be overcome by the plaintiff in order to obtain leave in view of what may be described as the most recent caseflow management principles. Prior to the coming into operation of those rules, the discretion to grant leave at, or after, trial was not so strictly fettered as is now the case, but nevertheless the court was obliged to have regard to principles of fairness. Generally speaking leave would be granted if any relevant prejudice to other parties could be redressed by an order for costs or an adjournment and, I would add, if the amendment is necessary "to obtain a correct issue between the parties": Tildesley v. Harper (1878) 10 ChD 393 at p 397 and Gilbertson's case per Zelling J at p 494. The relevant matters to be taken into account on this application are as follows. The plaintiff could have included the proposed causes of action in the statement of claim when it was filed or when it was amended prior to the trial. No facts emerged at the trial which were previously unknown to the plaintiff and which would have given him cause to consider these causes of action for the first time. The grandsons went to trial in the knowledge that no claim for compensation or damages had been made against them. They conducted the litigation on that basis. If these causes of action had been pleaded before the trial, the grandsons may have adopted a different stance. I think to allow the amendments at this late stage would result in prejudice to them. The trial would have to resume and they would have to conduct their defence in light of the findings which have already been made. Although Mr. McNamara contended to the contrary, it is possible that further evidence will be called and the plaintiff will have to give additional evidence as the basis for assessing compensation under s.191x may be different than for assessing damages for breach of contract. Mr. McNamara argued that if leave was refused and the plaintiff persisted with his claims he would be obliged to institute fresh proceedings and probably in the District Court with the result that another judge would have to consider afresh matters which had been raised and considered by me in these proceedings. Such a consequence would result in further delay and additional expense. Whilst I have regard to that matter, I do not think it is of great significance. 5. Having weighed the competing considerations, I have concluded that leave should be refused. To my mind there is an important difference between allowing an amendment to permit the correct issue to be decided or permit consequential relief which has not been claimed and permitting a fresh cause of action against a party in respect of whom no substantive relief had been claimed before or during the trial. The grandsons were entitled to participate in the trial. They did so on the basis of the causes of action and the issues which had been raised in the pleadings. To permit the evidence at the trial and the findings made on the evidence to be now used in the resolution of fresh causes of action of which they did not have notice would be unfair and prejudicial to them in a relevant sense. I refuse the application. I turn to the plaintiff's claim for damages against the executors. That claim is made against them in their capacity as the executors of the estate of the late Mr. Swain. It is a claim for damages for breach of contract. Initially the claim was also made against the first defendant but, as I understand the position, the claim against her, now her estate, is abandoned. 6. S.30 of the Supreme Court Act 1935 provides:- "In any action arising out of the breach of any covenant, contract, or agreement, or instituted to prevent the commission or continuance of any wrongful act or for the specific performance of any covenant, contract, or agreement, the court shall have power to award damages to the party injured either in addition to or substitution for the injunction or specific performance, and those damages may be assessed by the court or in such manner as it directs." 7. The plaintiff has obtained specific performance of the agreement for sale and purchase of the subject land and the deed. Therefore damages may not be awarded if the damages would be a duplication of the relief of specific performance. However, that principle does not apply where damages are not a substitute for specific performance but are directed to losses incurred despite performance, such as damages for delay in performance: (see Spry: Equitable Remedies, 4th ed. at p.628). The plaintiff's claim is for the damages suffered by him in consequence of the delay in performance not for damages in lieu of the performance of the agreement and the deed. The claim is, in effect, based upon the loss suffered by the plaintiff in not being able to obtain title to the subject property and settle on the contract of sale and purchase with Mr. and Mrs. Lyas. Having given further consideration to the matter, I have reached the conclusion that the plaintiff is entitled to damages on this basis. The assessment of the damages will depend upon interest rates prevailing at various times between the time when the executors declined to perform the agreement for sale and purchase and the deed and the date of settlement of that transaction. I enter judgment for the plaintiff against the executors for such damages to be assessed by a Master. 8. With respect to the application by the executors for leave to issue a contribution notice against the grandsons, I take the same view as with respect to the application of the plaintiff for leave to amend the statement of claim. The executors were well aware of the claim for damages against them when the amended statement of claim was delivered. They did not seek contribution against the grandsons at any stage before or during the trial. Furthermore, I have been informed of the terms of an agreement between the plaintiff and the executors. Pursuant to that agreement, if the executors are obliged to pay any sum by way of damages or costs or both to the plaintiff, such liability of the executors shall be confined to the unadministered assets of the estate of the late Mr. Swain as if the executors had pleaded the defence plene administravit proctor and judgment had been given on that basis. Furthermore, it was agreed, in effect, that their costs be paid out of the estate in priority to any judgment against them. In these circumstances it is difficult to see the utility of contribution proceedings by them against the grandsons. I refuse the application for leave. 9. I order that the parties be at liberty to speak to the minutes and that they have liberty to apply on 48 hours' notice. I reserve the question of costs of the various hearings since and including 2nd June 1992 and I certify fit for counsel.