Southern Wine Corporation Ltd (in Liq) v Frankland River Olive Co Ltd
[2007] WASC 142
•8 JUNE 2007
SOUTHERN WINE CORPORATION LTD (IN LIQ) -v- FRANKLAND RIVER OLIVE CO LTD & ANOR [2007] WASC 142
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 142 | |
| 02/07/2007 | |||
| Case No: | CIV:1852/2004 | 1 MAY & 8 JUNE 2007 | |
| Coram: | MASTER SANDERSON | 8/06/07 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to amend granted | ||
| B | |||
| PDF Version |
| Parties: | SOUTHERN WINE CORPORATION LTD (IN LIQ) (ACN 083 901 786) FRANKLAND RIVER OLIVE CO LTD (ACN 089 521 997) SOUTHERN OLIVE MANAGEMENT PTY LTD (ACN 091 867 917) |
Catchwords: | Practice and procedure Application for leave to amend defence Turns on own facts |
Legislation: | Nil |
Case References: | Southern Wine Corporation Ltd (In Liq) v Frankland River Olive Co Ltd [2006] WASC 292 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
FRANKLAND RIVER OLIVE CO LTD (ACN 089 521 997)
First Defendant
SOUTHERN OLIVE MANAGEMENT PTY LTD (ACN 091 867 917)
Second Defendant
Catchwords:
Practice and procedure - Application for leave to amend defence - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Leave to amend granted
Category: B
Representation:
Counsel:
Plaintiff : Mr G D Cobby
First Defendant : Mr M N Solomon
Second Defendant : Mr M N Solomon
Solicitors:
Plaintiff : Christensen Vaughan
First Defendant : DLA Phillips Fox
Second Defendant : DLA Phillips Fox
Case(s) referred to in judgment(s):
Southern Wine Corporation Ltd (In Liq) v Frankland River Olive Co Ltd [2006] WASC 292
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
(Page 3)
1 MASTER SANDERSON: This is the defendants' application for leave to amend its defence in terms of a minute of proposed substituted defence and counterclaim filed 23 May 2007 ("the minute"). This document represents the last in a number of proposed amended defences which have been provided over a considerable period of time. Extensive discussions have taken place between the parties but no agreement can be reached. Such lack of agreement is consistent with the way that this matter has proceeded from the first.
2 Each party filed detailed written submissions in support of their position. With the benefit of those written submissions and after hearing argument, I determined that leave should be given to the defendants to amend in terms of the minute. I then indicated I intended to programme the case for further hearing. Counsel for the defendants asked that I provide written reasons for reaching that conclusion as his clients would consider an appeal. Given the history of this matter, it seems appropriate that I do provide reasons for my decision. These are those reasons.
3 This is a somewhat complex factual case. In my earlier decision of Southern Wine Corporation Ltd (In Liq) v Frankland River Olive Co Ltd [2006] WASC 292 (at [7]), I set out a statement of facts proposed by the plaintiff for the purposes of that application. I should emphasise that the statement of facts was drawn up particularly for that application and it was not agreed between the parties. Nonetheless, as a background to this application, it is sufficient if I incorporate that statement of facts by reference.
4 The plaintiff's first complaint is the delay on the defendants' part in formulating an acceptable pleading. The statement of claim was filed in July 2004. Notice of a proposed amendment to the statement of claim was given in November 2004 and following the plaintiff's successful appeal, amendment made in substantially those terms in December 2005. The defendants obtained an adjournment to consider their defence on 30 January 2007 and again on 13 February 2007. The defendants' application for leave to amend their defence was filed on 27 February 2007 and programming orders were not made until 12 March 2007. Counsel for the plaintiff made the point that the plaintiff is in liquidation and that adjournments and costs are not, in those circumstances, an adequate remedy for repeated adjournments. There is merit in that observation.
5 The defendants were to file and serve their submissions first pursuant to the order of 12 March. Those submissions were due on 2 April 2007
(Page 4)
- but were not served until 30 April 2007. Those submissions concerned a minute of proposed re-amended defence which was provided to the plaintiff on that date, the day prior to the hearing. This hearing was adjourned. The present minute is dated 23 May 2007. That document was lodged together with submissions in support of the application for leave on 23 May 2007. As the hearing was listed for 8 June 2007, the plaintiff had limited opportunity to consider the substituted pleading. However, to its credit, it did prepare submissions which addressed amendments to the document which went beyond those made in the document of 1 May 2007.
6 Against that rather unhappy background, it was the plaintiff's primary submission that very little leeway should be granted to the defendants and that only amendments which raised issues of real substance ought be allowed. In fact, counsel submitted that none of the amendments raised issues of any real substance and none of the amendments ought be allowed. This, he said, combined with the delay, would warrant leave to amend in terms of the minute being refused with no further opportunity being provided to the defendants to amend their pleading.
7 Turning to the minute, the first observation to make is that it reads in a coherent fashion. It addresses each of the matters raised in the statement of claim and, where it is necessary to do so, refers specifically to provisions in either the constitution, the Land and Management Agreements ("LAMA") or the Corporations Act 2001 (Cth). No one reading that document could be in any doubt as to the matters being raised by the defendants. That is not to say that in some parts further particulars could not be called for. But the pleading itself has all the hallmarks of a document to which considerable care and attention has been directed and which clearly sets out the defendants' position.
8 Once that point is reached, it is problematical whether there is any purpose to be served in going through the provisions of the defence line by line to see first whether form has been observed and secondly in an attempt to deal with issues raised by the pleadings.
9 To indicate the nature of the objections taken by the plaintiff, reference can be made to par 11 of the statement of claim. That paragraph pleads that the plaintiff is entitled to receive certain fees for the year ending 30 June 2003. By par 12 of the minute, the defendants raise a series of matters which they say prevents any such claim being made. For example, par 12.1 pleads that when establishing a vineyard in 1999, the
(Page 5)
- planting ought to have been completed by October 1999 to take advantage of the growing season between September and late May. It is alleged that this did not occur. That, taken with other matters pleaded in par 12, is said to deprive the plaintiff of any payment it claims in par 7 of the statement of claim.
10 In answer to that plea, the plaintiff says that par 12.1 to par 12.5 do not disclose a reasonable ground of defence because the matters pleaded are statute-barred. The first point to make about a claim being statute-barred is that it is not generally appropriate to determine such issues (even when the pleading is clear) on an interlocutory case: see Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 533. But that is not the end of the matter. Paragraph 8 of the re-amended statement of claim pleads the constitution is a deed. That affects the limitation period which applies to the defendants' case pleaded in par 12. Before a limitation defence can even be included in the plaintiff's reply, it will be necessary to obtain leave to amend par 8 of the statement of claim. The reference to a deed may or may not be an admission and it may or may not be open to the plaintiff to withdraw such an admission. But the potential for future fighting over the pleadings is obvious.
11 In my view, taken together, the statement of claim that stands at present and this proposed amended defence adequately define the positions of the parties. Both documents may need further refining. But if that is done, it is best done by the trial Judge. For the present, it is my view that the proposed defence ought stand, the matter ought be programmed for a hearing and the real issues between the parties can be determined at that hearing. I am satisfied that leave ought be given to amend in terms of the minute. I am further satisfied that the costs of this application ought be costs in the cause. Of course, the plaintiff should have its costs thrown away by reason of the amendment. The parties should bring in a short minute of orders.
0