Rydlyme International Pty Ltd v Delta T Technologies Pty Ltd - [2007] WADC 9

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RYDLYME INTERNATIONAL PTY LTD -v- DELTA T TECHNOLOGIES PTY LTD & ORS [2007] WADC 9

CORAM: SWEENEY DCJ

HEARD: 8 DECEMBER 2006

DELIVERED : 14 FEBRUARY 2007

FILE NO/S: CIV 871 of 2004

BETWEEN: RYDLYME INTERNATIONAL PTY LTD (ACN 087 764 985)
Plaintiff
AND
DELTA T TECHNOLOGIES PTY LTD
First Defendant
PIERRE GEOGHEGAN
GRAHAM ANDERSON
Second Defendants

Catchwords:

Application to amend statement of claim - Turns on own facts

Legislation:

Nil

Result:

Application dismissed. Leave to make further application within 30 days.

Representation:

Counsel:

Plaintiff:     Mr T Carmady
First Defendant             :     Ms R Lee
Second Defendants       :     Ms R Lee

Solicitors:

Plaintiff:     Williams & Hughes
First Defendant             :     Mullins Handcock
Second Defendants       :     Mullins Handcock

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

Boulton v Jones (1875) 2 H & N 564; 157 ER 232
Cundy & Bevington v Lindsay (1878) 3 App Cas 459
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Case(s) also cited:

Jarvis v Stirling Corporation Pty Ltd [2005] WASC 210
Lewis v Averay [1971] 3 All ER 907; [1971] 3 WLR 603
Porter v Latec Finance (Qld) Pty Ltd (1964) 111 CLR 177
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161

SWEENEY DCJ: This is the plaintiff's appeal against a decision of Registrar Hewitt on 14 November 2006 to dismiss the plaintiff's application for leave to join a party, namely a second plaintiff, and for leave to amend the statement of claim and writ of summons. The appeal being from a Registrar exercising the delegated jurisdiction of this Court, the appeal is a review de novo. It is to be dealt with by me as though it were before the Court for the first time, although the plaintiff has carriage of the matter (see Hazart Pty Ltd v Rademaker (1993) 11 WAR 26).
The plaintiff also requires an extension of time within which to file its notice of appeal. That point can be dealt with briefly: the affidavit of Leanne Allison of the plaintiff's solicitor's states that Ms Allison mistakenly considered that Pt 2 r 15 of the District Court Rules 2005 governed the matter, giving her 10 days from the date of the Registrar's decision within which to lodge the appeal. That time limit was met. It is now accepted however that the District Court Rules1996 apply and they provide only a five day period within which to lodge the notice of appeal. The delay in this case is not at all lengthy and the defendants took no particular issue with the extension of time. In all of the circumstances, the extension of time is granted.
In order to understand the application to amend the statement of claim it is necessary to outline the original basis upon which this action was pursued.

The pleadings to date

The original writ, filed 5 May 2004, claimed the sum of $37,613.35 from the first defendant, being monies owed by the first defendant to the plaintiff for goods, supplied and delivered, but not paid for. It claimed the same sum from the second defendants, pursuant to a deed of guarantee in which the second defendants guaranteed the first defendant's debts to the plaintiff. The writ was amended on 16 June 2004 to reflect the first defendant's change of name to Delta T Technologies Pty Ltd.
The statement of claim was straight forward. It alleges that on 30 April 2001, the plaintiff, Rydlyme International Pty Ltd, entered into a contract with the defendants by which the first defendant, Delta T Technologies Pty Ltd, agreed to distribute the plaintiff's products in North Queensland and the plaintiff agreed to supply those goods to the first Defendant. It appears from later pleadings that the product in question is a liquid chemical descaler. The second defendants, Messrs Geoghegan and Anderson, agreed to guarantee the debts of the first defendant to the plaintiff.
The statement of claim then alleges that the first defendant ordered the plaintiff's products pursuant to the contract on three separate occasions, namely July 2002, March 2004 and again in March 2004 and that the plaintiff fulfilled those orders and invoiced the first defendant.
As to the first delivery, an amount of only $62.92 is outstanding. In respect of the second delivery, the total amount of $15,170.10 remains outstanding and, in respect of the third delivery, the total amount of $22,380.33 remains outstanding, totalling $37,613.35 and the plaintiff claims interest.
On the defendants' filed a defence and, in respect of the first defendant only, a set off and counterclaim.
The defence, filed 18 October 2004, pleads that the first defendant commenced ordering the product from the plaintiff from December 2000. It is accepted that the contract was entered into on 30 April 2001, but the defendants plead that the contract expired on 27 December 2003, but with an option to extend for three more years, which the first defendant says it did exercise. The defence was expressed in terms that on or about 9 December 2003 the first defendant gave notice to the plaintiff to exercise its option for an extension and thereby accepted the plaintiff's offer to grant an extension, by reason of which there was an extension of the agreement.
The defendants contend however that the plaintiff wrongfully refused to extend the contract, instead offering new (and less attractive) contractual terms and this, the defendants' say, amounted to a repudiatory breach. The alleged repudiatory breach occurred on or about 23 December 2003 when the plaintiff refused to grant an extension. The first defendant accepted this repudiatory breach on or about 19 April 2004.
The defendants admit that the first defendant ordered the product pursuant to the contract between December 2000 and 27 December 2003, but thereafter deny ordering the product pursuant to the contract and deny that the plaintiff fulfilled any such order.
The first defendant also pleads a set off and counterclaim. It claims that any amount owing for any goods delivered can be set off against the first defendants' claim in damages against the plaintiff for breach of contract. The set off and counterclaim also alleges misleading conduct and negligence against the plaintiff. It is not necessary for me to detail the particulars of the set-off and counterclaim.
Finally, the second defendants plead by way of defence that a term should be implied into the contract that their guarantee of the first defendant's debt to the plaintiff is subject to the plaintiff performing its obligations under the contract and subject to any debts of the first defendant not being disputed, or the subject of a set off or counterclaim.
On 5 January 2005 the plaintiff filed its reply and defence to the first defendants' set off and counterclaim. The plaintiff denies being in breach of the contract and pleads that certain conditions precedent to the exercise of the option to extend the contract were not met in that, firstly, the plaintiff could not obtain an extension of its contract with the American distributor Apex Engineering Products Corporation ("the Apex head distribution agreement") and, in any event, the first defendant was in breach of the contract by failing to pay for product supplied.
On 27 June 2005, the plaintiff amended its statement of claim. Many of the amendments were cosmetic but, significantly, the plaintiff addressed the assertion of the first defendant that it had exercised an option to extend the contract for a term of three years. The plaintiff denies that extension but pleaded in the alternative that, if the extension did occur, then the guarantee given by the second defendants was likewise extended, the product was supplied pursuant to that extended contract and the guarantee covered payment for the product.
Leave was given to file and serve this amended statement of claim by Deputy Registrar Harman on 13 June 2005. The leave was in general terms, rather than in terms of any minute of proposed amendments and, in response to those amendments, the defendants filed an amended defence on 2 August 2005.
By the amended defence, the defendants pleaded that any product sold or delivered in March 2004 was not sold or delivered pursuant to the contract and otherwise did not admit the allegation that the two March deliveries were ordered and delivered. The defendants did not plead in response to the plaintiff's assertion that, if the contract was extended as claimed by the defendants, the terms of the guarantee were also extended. The defendants also admit that the amounts claimed in respect of the second and third deliveries have not been paid. They plead that, if they are liable to pay the plaintiff, then they are entitled, against the plaintiff's claim, to set off the full amount in satisfaction of the first defendant's counterclaim.

The need to amend the writ and statement of claim

In June of this year the issue of the plaintiff's identity reared its head. It seems in February 2004, the plaintiff, Rydlyme International Pty Ltd (ACN 087 764 985) changed its name to KRC Holdings Pty Ltd. There is no explanation before me as to why precisely that occurred, but presumably it was in some way to the advantage of the plaintiff. A new company, Rydlyme International Pty Ltd (ACN 108 066 011) (“the new Rydlyme”) was incorporated on 19 February 2004 and, from its incorporation, assumed conduct of the business previously conducted by the plaintiff. To an outside observer, the only distinction between correspondence sent by the plaintiff and that sent by the new company is the differing ACN. According to the defendants, they were quite unaware that this had taken place and it is certainly not apparent from the documentation that they must have been alerted to it. In fact, when one examines the invoices relied upon by the plaintiff, the invoices in respect of all three deliveries bear ACN 087 764 985, being that of the plaintiff. Only the first invoice was issued before the new Rydlyme took over the business.
Keith Robert Cole, managing director of both the new Rydlyme and the plaintiff, explains in his affidavit: "The use of the old letterhead after the date of the incorporation of the new trading company, Rydlyme International on 19 February 2004 was an oversight on my behalf". The error was corrected on 16 April 2004 when the defendants were again sent, by facsimile transmission, the second and third invoices, now bearing the new ACN. The correspondence did not, however, make any mention of the change in identity of the supplier of the goods.
The affidavit of Ms Charunee Horwood sworn 20 October 2006 on behalf of the defendants states that the plaintiff's solicitors advised the defendants' solicitors by letter dated 29 June 2006 of the change in name of the plaintiff, the incorporation of the new Rydlyme, and their intention to amend the statement of claim "by pleading in an alternative case, the substitution of Rydlyme International Pty Ltd (ACN 108 066 011) as plaintiff for the entity which is ACN 087 764 985, formally Rydlyme International Pty Ltd."
Clearly this has very significant implications for the conduct of the plaintiff's case. Of the three alleged supplies of the product to the defendants, only the first occurred prior to the new company taking over the business of the plaintiff. In respect of that first delivery, only the sum of $62.92, together with interest, is outstanding. The second and third pleaded transactions occurred after the new company took over the business. This therefore raises issues of what, if any, contractual arrangement existed between the parties and which entity delivered the goods.
At the outset of the hearing before me, counsel for the plaintiff clarified certain matters. The first, which is significant, is that the plaintiff does not assert that any benefits or liabilities pursuant to its contract with the defendants were assigned to the new company. Later in the hearing before me counsel for the plaintiff clarified that, in the case of the second and third deliveries of product, those products were delivered by the new Rydlyme, rather than the plaintiff. It follows, and this was accepted by plaintiff's counsel, that the existing plaintiff's cause of action is limited to the first delivery of goods which allegedly took place in July 2002 for which the sum of $62.92 with interest is outstanding.
There is no suggestion in the pleadings that the new Rydlyme was acting as agent for the plaintiff, and the plaintiff had ceased to conduct that business from 19 February 2004. The second and third deliveries not having been made by the plaintiff, the plaintiff cannot be entitled to payment for those goods and it can have no cause of action in respect of those deliveries. When questioned by me about the existing plaintiff's intentions in relation to this action, the plaintiff's counsel has indicated that the plaintiff has no intention of discontinuing its action. The defendants' defence, set off and counterclaim has to date proceeded on the basis that the entity which made all three deliveries is the same entity with which the defendants contracted and which they allege breached that contract.

The proposed amendments

By its proposed re-amended minute of re-amended statement of claim, the plaintiff firstly adds a second plaintiff, namely the new Rydlyme. The plaintiff's name change and the fact that the new Rydlyme carried on the business from 19 February 2004 is now pleaded. The contract of 30 April 2001 between the plaintiff and the defendants continues to be pleaded, as does the guarantee given by the second defendants. As to the first delivery of product, this is now clarified to have been an order by the first defendant which order was "fulfilled" by the plaintiff.
Turning to the second and third deliveries, these are now pleaded exclusively on the basis that a contract was formed constituted by the first defendant's purchase order and the new Rydlyme's corresponding invoice, it being an express term of those invoices that payment would be made within 30 days of delivery of the product. Paragraph 12 pleads that the "product, the subject of the invoices, was delivered to the first defendant on 15 March 2004 and 24 March 2004 respectively". The proposed amendments do not identify which entity delivered the product, which is clearly an essential pleading. On the basis that the first defendant has not paid for the second and third deliveries, the pleading now claims that the first defendant is indebted to the new Rydlyme in the amount of $37,550.43. In the alternative, the new Rydlyme claims payment of a reasonable price for the product delivered and repeats its previous pleadings. This is essentially a claim on the basis of quantum meruit. Again, it will be essential that the entity which delivered the product be pleaded.
Existing pars 16 – 21 remain in the proposed statement of claim. These paragraphs were added to the statement of claim on its first amendment and have been responded to by the defendants. These amendments were made prior to the discovery by the defendants that the plaintiff had ceased to carry on the business and a new company had been formed for that purpose. In these paragraphs, and by way of defence to the counterclaim, the plaintiff denies that the contract between it and the defendants was extended but pleads that, if it was, the guarantee was also extended, product was supplied pursuant to the contract and the second defendant's guarantee extended to that debt. These paragraphs therefore purport to assert, in the alternative, that all three deliveries of product were made pursuant to the original contract and that the second defendants' guarantee extends to them.
It is the case, however, that the plaintiff, no longer conducting the business as from 19 February 2004, delivered no product to the first defendant, irrespective of whether the contract was extended or not. The plaintiff not having delivered any product to the first defendant, I can see no cause of action by which it is entitled, as is pleaded in par 20, to the moneys outstanding for the second and third deliveries. Having already pleaded in par 6 that "the second defendants agreed to guarantee the debts of the first defendant in respect of the product ordered from and supplied by" the plaintiff, the plaintiff now asserts that the second defendant is liable to it to guarantee debts of the first defendant owed to another company for goods supplied by that other company. It being no part of the plaintiff's case as disclosed in these pleadings, and counsel for the plaintiff having indicated that it will form no part of the plaintiff's case in future, that there was any assignment of the benefits and obligations of the contract with the plaintiff to the new Rydlyme, it is not open to the plaintiff upon the pleadings to prove the facts at trial which are needed to ground this cause of action.
I must be careful to ensure that the plaintiff and the new Rydlyme are not improperly deprived of the opportunity to have their case heard and to argue a question of law as it arises before a trial Judge. It does appear to me, however, that there can be no basis at trial for the legal conclusion contended for by the plaintiff in these pars 16-20 because there is now no factual basis upon which to base this aspect of the claim.
While the paragraphs are pleaded in the alternative, it is not possible for the plaintiff and the new Rydlyme to "hedge their bets" in this respect. It is essential to the new Rydlyme's proposed claim that it establishes that the money is owed to it and therefore the fact of its delivery of the goods must be specifically pleaded. That being the nature of the proposed case, consistent with what the evidence will tend to establish, pars 16‑21 are embarrassing.
During my discussion with the plaintiff's counsel concerning these paragraphs, plaintiff's counsel submits I should give leave to amend the statement of claim in these terms, notwithstanding the difficulties with pars 16‑21, on two grounds: firstly, given that the defendants did not object to these paragraphs previously and have pleaded to them, they cannot now raise objection and, secondly, it is likely the pleadings, including the defence, will need further amendment, therefore any difficulties can be cured later.
Neither argument persuades me. It is true that the defence did not object to the addition of pars 16‑21 when they were the subject of inclusion into the amended statement of claim. At that time, the defendants were not armed with the knowledge that the plaintiff had changed its name and the new Rydlyme had been conducting the business. While these amendments were made with the leave of the court, leave was given at large in general terms. In any event, had these pleadings been good at the time at which they were incorporated into the amended statement of claim then, by reason of these latest proposed amendments, which fundamentally alter the nature of this case, they can no longer stand. I must consider this document as a whole and it is apparent on the information before me that the amendments proposed to be made adding the new Rydlyme as second plaintiff are essential to this matter, whereas pars 16‑21 have been entirely overtaken by the information that the plaintiff no longer carried on the business at the time of the second and third deliveries and did not make those deliveries.
The claim for relief therefore from the same difficulty in that it includes a claim on the part of the plaintiff against the first defendant for the sum of $37,612.43 pursuant to the contract and the extension.
The same comments apply to the minute of re‑amended writ of summons. The proposed amendments incorporate a claim by the plaintiff against the first defendant for $62.92 pursuant to the contract. There is no difficulty with that aspect, however, in the alternative, the plaintiff claims the sum of $37,612.43 pursuant to the contract and the extension. This is simply a reflection of pars 16‑21 of the statement of claim but, those paragraphs now disclosing no reasonable cause of action, the claim in the writ is defective. Likewise, the plaintiff claims against the second defendant the same sum pursuant to the terms of the guarantee, in respect of which I repeat my comments set out above. Finally, as against the first defendant only, the new Rydlyme proposes to claim the sum of $37,550.43, being the monies due and owing on the second and third deliveries, an amendment which is essential to the writ given that the proposed amendments to the statement of claim exceed the endorsement.

As to the second submission by counsel for the plaintiff that these proposed amendments will likely result in further amendments and consequently any issues with pars 16‑21 can be resolved between the parties at a later date, I do not find the submission attractive. Accurate and clear pleadings are the method by which the issues in dispute in a case are identified. They are not a mere formality and the defendants in this case are entitled to know the case they have to meet. There is no good reason why the plaintiff cannot identify the party with whom the contract was entered into and the party which delivered the goods to the first defendant, prior to this action proceeding one step further. It is not for the defendants to try to make what they can of the re‑amended minute of re‑amended statement of claim and attempt to plead to matters which are now understood by all parties to be contrary to the evidence which will be led and contrary to the position taken by the plaintiff's counsel. This is not a mere pleading point or a technical argument but an issue which affects the proper preparation for trial by both parties.
As clarified by the plaintiff's counsel before me, the plaintiff's case is quite straightforward. The plaintiff claims under its contract with the first defendant, and under the guarantee provided by the second defendant, the princely sum of $62.92 and interest. The proposed second plaintiff, the new Rydlyme, intends to claims the amount outstanding pursuant to a contract arising from the second and third deliveries of product, being goods ordered by the first defendant and delivered to it by the new Rydlyme.
There will be questions of law to be determined upon the evidence at trial as to whether the first defendant did indeed enter into a contractual arrangement with the new Rydlyme, unaware of the change in identity, or whether identity was critical to that contract and hence no contractual arrangement can be implied. The defendants argue that, in ordering the product on the second and third occasions, the first defendant made no offer to purchase goods from the new Rydlyme, being entirely unaware of its existence. They contend therefore that the new Rydlyme cannot have accepted the first defendant's offer by delivering the goods. The defendants in effect argue that this is a case of unilateral mistake rendering any contract void, unilateral in that the plaintiff knew it no longer carried on the business, the new Rydlyme knew that the first defendant's distribution agreement was with the plaintiff and the new Rydlyme knew that the first defendant was unaware of its incorporation and assumption of the conduct of the business.
This submission is support by the decision in Boulton v Jones (1875) 2 H & N 564; 157 ER 232. In that case, the defendants had been in the habit of dealing with one Brocklehurst, who owed them money. They sent an order for goods in writing addressed to Brocklehurst. That very day, unknown to them, Brocklehurst had sold his business to his employee, the plaintiff who, upon receiving the defendants' order, delivered the goods. When an invoice for the price was later sent to the defendants, they refused to pay, saying they knew nothing of the plaintiff.
Pollock C B said:
"The point raised is, whether the facts proved did not shew an intention on the part of the defendants to deal with Brocklehurst. The plaintiff, who succeeded Brocklehurst in business, executed the order without any intimation of the change that had taken place, and brought this action to recover the price of the goods supplied. It is a rule of law, that if a person intends to contract with A., B. cannot give himself any right under it. Here the order in writing was given to Brocklehurst. Possibly Brocklehurst might have adopted the act of the plaintiff in supplying the goods, and maintained an action for their price. But since the plaintiff has chosen to sue, the only course the defendants could take was to plead that there was no contract with him."
Martin B said:
"This is not a case of principal and agent. If there was any contract at all, it was not with the plaintiff. If a man goes to a shop and makes a contract, intending it to be with one particular person, no other person can convert that into a contract with him."
Bramwell B said:
"If the plaintiff were now at liberty to sue the defendants, they would be deprived of their right of set‑off as against Brocklehurst. When a contract is made, in which the personality of the contracting party is or may be of importance, as a contract with a man to write a book, or the like, or where there might be a set‑off, no other person can interpose and adopt the contract. As to the difficulty that the defendants need not pay anybody, I do not see why they should, unless they have made a contract either express or implied."
Channell B said:
"In order to entitle the plaintiff to recover he must shew that there was a contract with himself. The order was given to the plaintiff's predecessor in business. The plaintiff executes it without notifying to the defendants who it was who executed the order. When the invoice was delivered in the name of the plaintiff, it may be that the defendants were not in a situation to return the goods."
The Court was in agreement therefore that the plaintiff had no contract with the defendants who were therefore not obliged to pay for the goods. At first blush at least the factual scenario there under consideration is similar to that in the case before me, including the potential for a set‑off against the plaintiff.
The learned authors of "Contract Law in Australia" Carter, JW and Harland, DJ 4^th ed Butterworth Australia (2002) have commented at [1241] of the decision in Boulton v Jones:
"The difficulty with the case is why the offer was interpreted as being personal to Brocklehurst, since it would normally be a reasonable construction of an offer made to a business that it is open for acceptance by whoever carries on the business. The case would have been different if it had been addressed to 'the proprietor' (of the business) or to the business itself or to whom it may concern or to no‑one in particular."
In the footnote to this discussion the authors continued:
"The case would certainly have been different if the defendants had retained and consumed the goods after receiving the plaintiff's invoice. This might have been construed as an acceptance of a counter‑offer by the plaintiff to sell them."
The learned authors of "Cheshire and FiFoot's Law of Contract" Seddon, NC and Ellinghaus, MP 8^th ed Butterworth Australia (2002) described the decision in Boulton v Jones as "unsatisfactory". The authors state at [12.58]:
"It was held that Jones was not liable for the price, but it is not clear whether the mistake was regarded by the court as unilateral or mutual. If the court was convinced that the plaintiff knew of the set‑off, and therefore that the offer was not intended for him, the contract, arguably, was void for mistake, though a preferable view to adopt might be that the contract was voidable. The court would then be in a position to set aside the agreement only if the status quo could be restored, which was not possible because the goods had been consumed. This solution would avoid the unjust result that the buyer did not have to pay the agreed price for the goods."
The other leading case upon which the defendants rely, Cundy & Bevington v Lindsay (1878) 3 App Cas 459, a case as to mistaken identity, is described in Contract Law in Australia (supra) at 1241 as "not a satisfactory decision", although it should also be noted that the controversy provoked by decisions in this field is often due to the involvement of innocent third parties and the issue of which party should bear the loss.
In this case, the questions of the identity of the party from whom the first defendant ordered the product and whether identity was critical to the contract are not easily answered. On the one had, it can be argued that the first defendant must have intended to order the product from the same entity with which it had a distribution contract, namely the plaintiff. On the other hand, however, it can be argued that the first defendant intended to order the product from the business which was capable of supplying it. There is suggestion in the affidavit of Keith Robert Cole sworn 6 November 2006 that the Apex head distribution agreement describes the contracting party as "Rydlyme International Pty Ltd ACN 108 764 985", an ACN which is an amalgam of the ACNs of the plaintiff and the new Rydlyme. This agreement was executed 12 March 2004 (according to Mr Cole's affidavit) after the new Rydlyme was incorporated. This raises the issue then of which of the plaintiff or the new Rydlyme had the distribution rights, which may impact on the issue of which entity the first defendant intended to contract with.
Further I have no evidence and no information from the pleadings as to what became of the products delivered and whether the status quo could or could not have been restored by the time the defendants discovered the change of entity carrying on the business, though the delay would suggest the products could not by then be returned.
In the absence of detailed evidence and legal argument on this issue I am not persuaded that the new Rydlyme cannot make good an argument that the first defendant did contract with it for the supply of the second and third deliveries of product.
I consider that each party has an arguable case on this point. Much will depend upon the evidence given at trial.
In the alternative, the new Rydlyme has an arguable case on the basis of quantum meruit.
The proposed amendments substantially change the action into one of a different character, although the plaintiff's claim in respect of the first delivery is to remain on foot. The plaintiff being reduced to a claim of such nominal value, I have given consideration to dismissing the action at this stage, allowing the new Rydlyme to commence a new action. No such application is before the court at this stage and in those circumstances I will not make such an order. Counsel for the plaintiff informed me that the plaintiff has no intention of discontinuing the action. The defendants have a set off and counterclaim against the plaintiff. As the facts have now emerged in relation to the change of entity carrying on the business, the set off is limited to the value of the plaintiff's claim, but the counterclaim is not so limited and nor is its continuation dependant upon the continuation of the plaintiff's action. There may be reasons why the plaintiff intends to continue in this action and it may work no disadvantage to the defendants, so at this stage I propose to confine myself purely to the application before me.
For the reasons outlined above, I dismiss the plaintiff's application for leave to amend its statement of claim and writ of summons in the terms put before me. While it is apparent there is a need to join the new Rydlyme to this action as the second plaintiff, the other applications being dismissed at this stage, there is no basis in the pleadings at this stage justifying the joinder and so that application is also dismissed.
As will appear from my comments above, however, I consider there is a realistic possibility that the plaintiff will be able to make good the defects in its statement of claim, and, accordingly, I give leave to the plaintiff to bring a further application to join the proposed second plaintiff and amend the writ of summons and statement of claim within 30 days of the delivery of this judgment.