An amendment of pleadings should ordinarily be allowed if any harm arising from so doing can be compensated for by the imposition of terms upon the party asking for the amendment.

In an action for money lent and for damages for breach of contract, the plaintiff having obtained a verdict for the whole amount claimed, the Full Court ordered a new trial and that the cost of the first trial should be costs in the cause. On the second trial the plaintiff was allowed to amend his pleadings so as to raise an entirely new case whereby the plaintiff claimed under a new contract alleged to have been substituted for that in respect of the breach of which he had before claimed damages.

The defendant was allowed an adjournment to consider what course she The plaintiff having again obtained a verdict for the whole amount claimed, the Full Court dismissed a motion for a new trial with costs.

Held, that the amendment was properly allowed, but that its allowance should have been subject to terms as to costs, an adjournment not being sufficient compensation to the defendant, and special terms were made as a condition upon the dismissal of the appeal.

Held, also, that there was evidence upon which the jury might properly find a verdict for the plaintiff upon the new case made by him.

15 CLR 258

Decision of the Supreme Court of New South Wales varied as to costs only

APPEAL fom the Supreme Court of New South Wales.

An action was brought in the Supreme Court by Phillip Lee Chun against Sarah Shannon claiming on two counts, one an indebitatus count for money lent, and the other for breach of a contract. The jury having found a verdict for the plaintiff for the full amount claimed, the defendant moved the Full Court for a new trial, which was granted, the Court ordering that the costs of the first trial should be costs in the cause.

At the new trial the jury again found a verdict for the plaintiff, and a motion by the defendant to the Full Court for a new trial was dismissed with costs.

From this decision the defendant now appealed to the High Court.

The facts are sufficiently stated in the judgments hereunder. Wise K.C. and Delohery, for the appellant. The plaintiff having set up one agreement at the first trial should not have been allowed to amend in such a way as to allege that that agree- ment had been abandoned and another substituted for it. An amendment allowing a party to make an entirely new case should not be allowed unless it is convenient, and unless the party desiring to amend pays all the costs that will be rendered abortive if the amendment is allowed. They referred to Queensland Investment and Land Mortgage Co. Ltd. v.…

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 Shannon v Lee Chun

Details

AGLC: Shannon v Lee Chun [1912] HCA 52
Case: [1912] HCA 52
Decision Date: 16 August 1912

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The original action was brought by Phillip Lee Chun (the plaintiff) against Sarah Shannon (the defendant), claiming for money lent and breach of contract. After a first trial resulted in a verdict for the plaintiff, the Full Court ordered a new trial. At the second trial, the plaintiff was permitted to amend his pleadings to introduce a new contractual claim, and again obtained a verdict for the full amount. The defendant's subsequent motion for a new trial was dismissed by the Full Court.

The legal issues before the High Court were whether the amendment to the plaintiff's pleadings was properly allowed, and if so, whether it should have been permitted without imposing specific terms as to costs. The Court also considered whether there was sufficient evidence to support the jury's verdict on the new case presented by the plaintiff.

The High Court held that the amendment was permissible, applying the principle that amendments should generally be allowed if any resulting harm can be compensated by terms, particularly costs, to ensure the determination of the real question in controversy. The Court found that while the amendment was properly allowed, the defendant was not adequately compensated by merely being granted an adjournment. Therefore, the Court varied the Supreme Court's order to impose specific terms regarding costs, ensuring the defendant was not unjustly prejudiced by the amendment. The Court also confirmed that there was sufficient evidence for the jury to find a verdict for the plaintiff on the substituted contract.

The appeal was dismissed, but the order of the Supreme Court was varied as to costs. The plaintiff was to receive his costs of the first trial on the second scale, less costs solely occasioned by the claim for £250 at the first trial and down to the time of the amendment, which were to be allowed to the defendant on the first scale, to be set off against the plaintiff's costs. The plaintiff was ordered to pay two-thirds of the defendant's taxed costs of the appeal.

Orders