SCHIJF -v- MYDOMAINE PTY LTD - [2015] WASC 428

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SCHIJF -v- MYDOMAINE PTY LTD [2015] WASC 428

CORAM: MITCHELL J

HEARD: 28 OCTOBER 2015

DELIVERED : 28 OCTOBER 2015

PUBLISHED : 10 NOVEMBER 2015

FILE NO/S: CIV 1300 of 2014

BETWEEN: ENNO SCHIJF
Plaintiff
AND
MYDOMAINE PTY LTD
First Defendant
SHELLEY CLACK
Second Defendant

Catchwords:

Practice and procedure - Pleadings - Limitation of actions - Whether amendments statute-barred - Application to amend the indorsement on the amended writ of summons

Legislation:

Limitation Act 1938 (WA)
Supreme Court Rules 1971 (WA), O 21 r 5(1), O 21 r 5(5)

Result:

Application allowed

Category: B

Representation:

Counsel:

Plaintiff:     Mr T Galic
First Defendant             :     Mr S D Hubbard
Second Defendant         :     Mr S D Hubbard

Solicitors:

Plaintiff:     TGC Lawyers
First Defendant             :     DLA Piper
Second Defendant         :     DLA Piper

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

ABB Service Pty Ltd v Hetherington [2001] WASCA 417
Aussie Ideas Pty Ltd v Tunwind Pty Ltd [2006] NSWCA 286
Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2009) 39 WAR 1
BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Glendinning v Cuzens [2009] WASCA 21
Issa v Issa [2015] NSWSC 112
Morgan v Banning (1999) 20 WAR 474
Soia v Bennett [No 2] [2011] WASC 133
Wardley Australia Pty v The State of Western Australia (1992) 175 CLR 514
MITCHELL J:

Summary

On 28 October 2015, I dealt with the plaintiff's application to amend his writ of summons and statement of claim in these proceedings. The proposed application to the indorsement on the writ of summons introduced a reference to a claim for 'damages for breach of fiduciary duty'. The defendant opposed the application on the ground that the amendment involved adding a new cause of action for which the relevant limitation period had expired.
What follows are my reasons for allowing that amendment, edited from the court's record of my oral decision given on 28 October 2015.

Procedural history

Writ of summons

This action was commenced by writ of summons issued on 28 February 2014.
The writ was amended without leave, pursuant to O 21 r (1) of the Rules, on 10 November 2014.
The amended writ was endorsed with a statement that the plaintiff claimed damages for negligence and continuing breach of duty of care by the defendants. The breach was said to relate to the plaintiff's purchase of a lot in a development known as 'Drift Palm Cove' in or about June 2008 and thereafter following an exchange of contracts until settlement of the property. The breach was said to include various 'continuing negligent misrepresentations and/or misstatements made by the Defendants in relation but not limited to' various matters, including the value of the property. The claim was also expressed to be for:
Damages for misleading and deceptive conduct including making representations as to future matters in relation…

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.

Keep reading for free

Create a free CaseChat account to read SCHIJF -v- MYDOMAINE PTY LTD and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] WASC 428
Decision Date: 10 NOVEMBER 2015

CaseChat Overview and Summary

The case of SCHIJF v MYDOMAINE PTY LTD involved a dispute over an application to amend the indorsement on the amended writ of summons. The plaintiff sought to amend the writ to include a claim for breach of fiduciary duty, which was not initially pleaded in the proceedings. The defendants opposed the amendment, arguing that it was statute-barred due to the expiry of the relevant limitation period.

The primary legal issue the court had to decide was whether the amendment to include a claim for breach of fiduciary duty was permissible under the relevant statute of limitations. The court had to consider whether the factual basis of the proposed new claim aligned with the facts pleaded in the writ within the statutory time limits. The court also had to examine whether a limitation period for contract or tort would apply by analogy to an action for breach of fiduciary duty.

The court found that the proposed amendment would be made after the expiry of the relevant limitation period. The plaintiff's counsel argued that no new cause of action was pleaded, and the court's enquiry should focus on whether the factual basis for the proposed new claim sufficiently coincided with the facts pleaded in the writ within the statutory time limits. The court held that the writ did not refer to a claim for breach of fiduciary duty or set out the facts that would ground such a claim. Instead, the writ sought relief for negligence and misleading and deceptive conduct. The court concluded that the factual basis for the proposed new claim did not sufficiently coincide with the facts pleaded in the writ within the statutory time limits.

The court refused the application to amend the writ to include a claim for breach of fiduciary duty. The court found that the proposed amendment would introduce a new cause of action that was statute-barred. The court held that the factual basis for the proposed new claim did not align with the facts pleaded in the writ within the statutory time limits. The court also found that the writ did not refer to a claim for breach of fiduciary duty or set out the facts that would ground such a claim. Therefore, the court refused the application to amend the writ.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

There is room for debate as to whether a court exercising equitable jurisdiction prior to 2005 would have applied the limitation period for contract or tort to an action for breach of fiduciary duty by analogy. The defendants have referred to authorities indicating that the limitation periods would apply by analogy to an action for breach of fiduciary duty.[1] However, in Bell Group Ltd (In Liq) v Westpac Banking Corporation,[2] Owen J found that there was no applicable analogy to the breach of fiduciary duty in that case.[1] Issa v Issa [2015] NSWSC 112 [41]; Aussie Ideas Pty Ltd v Tunwind Pty Ltd [2006] NSWCA 286 [22] ‑ [24].[2] Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2009) 39 WAR 1, [9267] ‑ [9293]. It is unnecessary to attempt to resolve the question in the present case. Counsel for the plaintiff accepts that the limitation period would be six years under either s 13 or s 27 of the Limitation Act. The defendant contends, and counsel for the plaintiff accepted, that the cause of action would have accrued by 28 August 2008 when the plaintiff purchased the Unit. On that basis, the limitation period would have expired on 28 August 2014. That date was after the issue of the writ in these proceedings, but prior to the recent application to amend the writ. Therefore, the plaintiff's counsel accepts that the proposed amendment will be made after the expiry of the relevant limitation period. However, counsel for the plaintiff rejects the contention that any new cause of action is pleaded. Of course, the reference to commencing an action is to the issue in the appropriate court of a writ or other originating application in relation to the action.[3] [3] Limitation Act, s 12. The defendants submit that the amendment should be refused unless the factual basis for the relief sufficiently coincides with the facts pleaded in the writ within time.[4] The defendants say that, as the statement of claim was filed after the expiry of the limitation period, the court's enquiry should be limited to the facts contained within the writ.[4] Citing Soia v Bennett [No 2] [2011] WASC 133 [53](c). The defendants submit that the writ does not refer to a claim for breach of fiduciary duty or set out the facts that would ground such a claim, but rather seeks relief only for negligence and misleading and deceptive conduct. The defendants say that the plaintiff must show that the defendants owed him a fiduciary duty and breached that duty, and this is not alleged in the writ. They say the writ makes no reference to an agency between the plaintiff and first defendant or the existence of a conflict of interest. They say that a claim of breach of fiduciary duty would involve a number of factual questions which would be irrelevant to a claim in negligence or for misleading and deceptive conduct. It is said, therefore, that the factual basis for the proposed new claim does not sufficiently coincide with the facts pleaded in the writ within time.