Sea Food International Pty Ltd v Lam T.P
[1995] FCA 747
•7 SEPTEMBER 1995
CATCHWORDS
PRACTICE AND PROCEDURE - Application to join cross-claimant as a respondent - representations made by first respondent on behalf of second respondent and/or proposed third respondent - no additional delay by joinder - costs - objection to joinder maintained - costs in the proceedings.
Federal Court Rules O.6 r.8(1)(b)
SEA Food International Pty Ltd v. Theng Pew Lam & Anor.
No. QG193 of 1994
Cooper J, Brisbane, 7 September 1995
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No. QG193 of 1994
BETWEEN:
SEA FOOD INTERNATIONAL PTY LTD
Applicant
AND:
THENG PEW LAM
First Respondent
AND:
HUXHAM PTY LTD
Second Respondent
JUDGE MAKING ORDER: Cooper J.
WHERE MADE: Brisbane
DATE OF ORDER: 7 September 1995
MINUTES OF ORDER
THE COURT ORDERS THAT :-
Megamix Pty Ltd be joined as a respondent in the proceedings.
The costs of today's appearance be each party's costs in the proceedings.
THE COURT GRANTS LEAVE :-
To the applicant to amend the statement of claim in terms of annexure "A" to the affidavit of Harold Charles Fong filed 11 August 1995.
THE COURT DIRECTS THAT :-
The amended statement of claim be filed and served by 4.00 p.m. today, 7 September 1995.
The third respondent deliver its defence within twenty-one (21) days of today.
The first and second respondents deliver any amended defence within twenty-one (21) days of today.
Liberty to apply on three (3) clear days notice.
The application be adjourned to a date set by the District Registrar for a directions hearing in application number 121 of 1995 in the Supreme Court of Queensland for the winding up of the applicant which application has been transferred to this court for further hearing.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No. QG193 of 1994
BETWEEN:
SEA FOOD INTERNATIONAL PTY LTD
Applicant
AND:
THENG PEW LAM
First Respondent
AND:
HUXHAM PTY LTD
Second Respondent
CORAM: Cooper J.
PLACE: Brisbane
DATE: 7 September 1995
REASONS FOR JUDGMENT
This is an application for the joinder of a third respondent, Megamix Pty Ltd. The application is brought under O.6 r.8(1)(b) of the Federal Court Rules on the basis that the representations relied upon by the applicant were made by the first respondent Mr Lam for an unnamed company. The material establishes that there are two possible companies in respect of which Mr Lam was acting, Huxham Pty Ltd (the second respondent) ("Huxham") or Megamix Pty Ltd ("Megamix"). It is submitted on behalf of the applicant that in order to preserve the applicant's position and to have an effective right against the relevant company on behalf of whom Mr Lam made the representations, the joinder is now necessary. It is put by the applicant that there is material filed which shows that Mr Lam conducted his business affairs in Australia through the two companies. I am advised that Megamix is a cross-claimant in the sum of $1,000,000.00, which claim arises out of circumstances different to those giving rise to
the claim of the applicant in the principal proceedings. There have been some proceedings in the Supreme Court of Queensland relating to the setting aside of a statutory demand although, for present purposes, those do not seem to me to be highly relevant to this application.
Mr Lilley on behalf of the respondents opposes the joinder on the basis that Huxham, by its pleading, effectively admits that Mr Lam was acting on its behalf in relation to the dealings with the applicant and refers to paragraph 5 of the defence and cross-claim. Paragraph 5 of the defence and cross-claim relates to allegations made in paragraphs 2, 3 and 9 of the statement of claim to which I will refer in a moment. Relevantly it is pleaded that on or about 11 October 1994, Huxham represented to the applicant that Huxham would purchase the Scarborough premises and that, subject to the financial accounts of the applicant being satisfactory to Huxham, Huxham would lease the Scarborough premises to the applicant.
In the particulars it is alleged that the representations were oral and were made by Mr Lam for Huxham to Mr Ray Teh for the applicant. The paragraph also alleges that on 13 October 1994 the accountants for Huxham requested the applicant to provide the relevant financial details which were not provided. Otherwise, the allegations contained in those paragraphs of the statement of claim are denied.
The allegations in the statement of claim do not relate to any oral agreement to purchase the property but purely to an agreement to lease, the lease being particularised in paragraph 3 of the statement of claim, and it is the representation as to the lease that is the subject of paragraph 9 of the amended statement of claim. Annexed to the affidavit of Mr Fong is an amended statement of claim proposed to be filed if the joinder is allowed. In paragraph 2 it is pleaded that the representation was made either by the second respondent or the proposed third respondent or by them jointly. The question of a joint representation and a joint liability or joint agreement has never previously been raised in the pleadings and has not been addressed by the second respondent.
It is submitted by Mr Lilley that, in the light of the pleading, there is no room for a joint or separate liability on the part of the proposed third respondent and that the application is brought merely for the purpose of delaying proceedings which are at the present time in all respects ready for trial. The state of the court lists in Brisbane at the present time is such that this matter will not receive a trial date in the balance of this year. Therefore, the joinder of the proposed third respondent would not cause additional delay which could not be accommodated in terms of directions to bring the matter to a state of general readiness by the end of the year.
To the extent that there is a possibility that a broader and different case may be established on trial, I am satisfied that, in terms of O.6 r.8(1)(b), there ought to be joinder of Megamix as third respondent in the principal proceedings. If at the end of the day the applicant fails against Megamix ,then the applicant will in the ordinary course pay the penalty by way of costs.
I turn now to the question of the costs of the joinder application. An
affidavit of a Gregory John Lister filed in the Supreme Court of Queensland in proceedings taken by the applicant to set aside a statutory demand served by Megamix deposes that Megamix is a company fully controlled by Mr Lam's family and which represents Mr Lam's family's business interests in this country. Mr Lister is the solicitor having carriage of the matter on behalf of the first and second respondents. The affidavit was filed in the Supreme Court on 28 March 1995 and was available prior to the close of pleadings. It therefore seems to be that there has been some delay in the bringing of the application but that delay does not, of itself, involve any question of the necessity for this application and the objection raised by the respondent to the joinder. The reality is that it was always open to the respondent to agree to the joinder and avoid the necessity for an appearance here today such that the matter could have been dealt with as a consent order under the rules and costs saved. Neither party has sought to follow that course. The objection to the joinder has been maintained and has required a ruling today. The justice of the matter seems to me to be adequately dealt with by making the costs of the day's appearance each party's costs in the proceedings and I so order.
THE COURT ORDERS THAT:
Megamix Pty Ltd be joined as a respondent in the proceedings.
The costs of today's appearance be each party's costs in the proceedings.
THE COURT GRANTS LEAVE :-
To the applicant to amend the statement of claim in terms of annexure "A" to the affidavit of Harold Charles Fong filed 11 August 1995.
THE COURT DIRECTS THAT :-
The amended statement of claim be filed and served by 4.00 p.m. today, 7 September 1995.
The third respondent deliver its defence within twenty-one (21) days of today.
The first and second respondents deliver any amended defence within twenty-one (21) days of today.
Liberty to apply on three (3) clear days notice.
The application be adjourned to a date set by the District Registrar for a directions hearing in application number 121 of 1995 in the Supreme Court of Queensland for the winding up of the applicant which application has been transferred to this court for further hearing.
I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper.
Date:7 September 1995
Associate
Counsel for the Applicant: Mr. M. Martin
Solicitors for the Applicant: H.C. Fong & Associates
Counsel for the Respondent: Mr. R. Lilley
Solicitors for the Respondent: Sly Weigall Cannan & Peterson
Date of Hearing: 7 September 1995
Place of Hearing: Brisbane
Date of Judgment: 7 September 1995
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