Silvey v Max Carey Nominees Pty Ltd - [2002] QCA 236

[2002] QCA 236

COURT OF APPEAL

DAVIES JA
WILLIAMS JA
JERRARD JA

Appeal No 3460 of 2002

JOHN BERNARD SILVEY Applicant

and

MAX CAREY NOMINEES PTY LTD Respondent
(ACN 005 235 334)

BRISBANE

..DATE 28/06/2002

JUDGMENT

WILLIAMS JA: This is an application pursuant to section 118, subsection (3) of the District Court Act 1967, for leave to appeal against an order made by a District Court Judge on the first morning of trial, giving the respondent/plaintiff leave to amend the plaint.

The respondent sustained personal injuries on 10 March 1998 when a pergola on which he was working collapsed. He was a builder who had been engaged to carry out work on that structure. The pergola was attached to a house which had been constructed in about 1995 by the applicant.

The original allegation of negligence was essentially that the defendant failed to construct the house, specifically the soffit framing, in a proper and workman-like manner. There was also allegation that the applicant had failed to comply with the requirements of the Building Act 1975 in the construction of the soffit framing.

The defence denied negligence and alleged the soffit was constructed in a proper and workman-like manner. It also alleged the respondent's own negligence, as particularised, was the cause of his fall.

The amendments were made on the first day of trial, 25 March 2002, by which time the three year limitation period had expired. In broad terms by the amendment the respondent asserted that the applicant made available contractual documents relating to the house to the financier of the original owner, that that financier provided those documents to the respondent and that those documents contained a representation that the applicant had caused the fascia area to be structurally strengthened.

It was then pleaded that in reliance on that representation the respondent accepted that the fascias were structurally able to take the load of the pergola and that he was injured when the pergola collapsed. It was then said that the collapse was due to the failure of the applicant to structurally strengthen the areas in question.

The applicant opposed the amendment on three grounds:

(1)the lateness of the application;
(2)that the pleaded case could not be sustained as a matter of law; and
(3)that the new course of action was time barred and did not fall within the terms of Rule 376(4) of the Uniform Civil Procedure Rules.

For a variety of reasons, which need not be expanded upon now, this Court is always reluctant to give leave to appeal against an interlocutory order, particularly one involving practice and procedure.

It is sufficient to say that ordinarily an applicant for leave in such circumstances would have to demonstrate at least serious doubt as to the correctness of the interlocutory ruling and also demonstrate that substantial injustice would result if leave were refused.

The fact that on an appeal against a final judgment it is open to the appellant to challenge the correctness of any interlocutory order made as…

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.

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Details

Case: [2002] QCA 236
Decision Date: 28/06/2002

CaseChat Overview and Summary

The case of Silvey v Max Carey Nominees Pty Ltd involves an application for leave to appeal against an order made by a District Court Judge, allowing the respondent to amend the plaint on the first morning of trial. The respondent sustained personal injuries when a pergola he was working on collapsed. The original allegation was that the applicant, who had constructed the house to which the pergola was attached, failed to construct the soffit framing properly and in accordance with the Building Act 1975. The applicant denied negligence and argued that the respondent's own negligence caused his fall. The amendments, made after the limitation period had expired, asserted that the applicant had represented that the fascia area had been structurally strengthened, leading the respondent to accept that the fascias could bear the pergola's load.

The legal issues in this case centred on whether the amendments raised a new cause of action or were merely additional particulars of the original cause of action, whether the new cause of action arose out of substantially the same facts as the original, and whether the amendments could be sustained as a matter of law. The applicant argued that the amendments were not sustainable as a matter of law and that they should be refused due to the lateness of the application and the time-barred nature of the new cause of action.

The Court of Appeal, in dismissing the application, found that the amendments raised a new cause of action but concluded that it was not attended with sufficient doubt to warrant reconsideration. The Court noted that a broad approach is permissible when determining whether the new cause of action arises out of substantially the same facts as the original. The Court further found that the amendments could not be said to be unsustainable as a matter of law, as the meaning attributed to the representation in question would depend on evidence led at trial. The Court held that the application for leave should be refused with costs, which would be stayed until trial or an earlier order by a District Court Judge.

Orders