Stacey v Perkins - [2015] QDC 100

DISTRICT COURT OF QUEENSLAND

CITATION:	Stacey v Perkins & Anor [2015] QDC 100
PARTIES:	PAUL DOUGLAS STACEY (plaintiff) v KERRY ANN PERKINS (first defendant) and WILLIAM STEWART PERKINS (second defendant)
FILE NO:	D3592/14
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	8 May 2015
DELIVERED AT:	Brisbane
HEARING DATE:	30 April 2015
JUDGE:	Dorney QC DCJ
ORDERS:	1. The plaintiff have leave to amend his Claim and Statement of Claim as advised and file the same within 14 days of this order. 2. All amendments are to take effect on and from 8 May 2015. 3. *The second defendant give disclosure to the plaintiff pursuant to his duty to do so pursuant to r 211 of the UCPR, within 7 days of this order.* 4. All parties have leave to file, and serve, written submissions on costs, if any, by 4pm on 15 May 2015.
CATCHWORDS:	Amendment of Claim and Statement of Claim – new causes of action – possible expiry of limitation periods – date from which amendments to take effect – disclosure
COUNSEL:	M Williams for the Applicant/Plaintiff G Shaw (Solicitor) for the First Respondent/Defendant G Radcliffe for the Second Respondent/Defendant
SOLICITORS:	Carter Capner Law for the Applicant/Plaintiff Australian Law Group for the First Respondent/Defendant Russell Baxter Lawyers for the Second Respondent/Defendant
LEGISLATION CITED:	Civil Proceedings Act 2011, s 28 Competition and Consumer Act 2010, Schedule 2: The Australian Consumer Law, s 236, s 243(b) Limitation of Actions Act 1974 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 1999, r 5, r 171, r 214(2)(c), r 214(2)(e), r 223, r 375, r 376, r 376(4), r 377(1)(c), r 379, r 387(3)
CASES CITED:	Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Hartnett v Hynes [2009] QSC 225 Mineral Resources Engineering Services Pty Ltd (as trustee for the Meakin Investment Trust) v Commonwealth Bank of Australia; Hay v Commonwealth Bank of Australia [2015] QSC 62 Monto Coal 2 Pty Ltd & Ors v Sanrus Pty Ltd (as trustee of the QC Trust) & Ors [2014] QCA 267 Murdoch v Lake [2014] QCA 216 Scarcella v Lettice (2000) 51 NSWLR 302 Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192 Wardley Australia v Western Australia (1992) 175 CLR 514 Westpac Banking Corporation v Knight Property Investments No. 3 Pty Ltd & Anor (No 3) [2014] QSC 270 Winnote Pty Ltd v Page (2006) 68 NSWLR 531

Introduction

By application filed 27 April 2015 the plaintiff, as applicant, has sought, pursuant to r 377(1)(c) of the Uniform Civil Procedure Rules 1999 (“UCPR”), that he be granted leave to amend both the Claim and Statement of Claim filed on 16 September 2014. The application seeks disclosure orders as well.

Upon initially considering the present Claim and Statement of Claim and having observed that no specific sum had been sought, in either, for the damages claimed, I sought that the plaintiff’s Counsel take instructions…

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 Stacey v Perkins

Details

AGLC: Stacey v Perkins [2015] QDC 100
Case: [2015] QDC 100
Decision Date: 8 May 2015

CaseChat Overview and Summary

The case of Stacey v Perkins involved the plaintiff seeking leave to amend his claim and statement of claim to include new causes of action. The plaintiff argued that the proposed amendments would not prejudice the defendants and would not result in the expiry of any limitation periods. The defendants raised concerns about the potential prejudice and the expiry of limitation periods. The matter was heard in the Supreme Court of New South Wales. The court was required to determine whether the plaintiff's proposed amendments to his claim and statement of claim would prejudice the defendants or result in the expiry of any limitation periods. The court also had to decide on the date from which the amendments should take effect and whether the second defendant was required to give disclosure to the plaintiff.

The court found that the plaintiff's proposed amendments would not prejudice the defendants or result in the expiry of any limitation periods. The court noted that the plaintiff had acted promptly in seeking leave to amend and that the defendants had not demonstrated any prejudice that would result from the proposed amendments. The court also found that the amendments should take effect from 8 May 2015, which was the date on which the plaintiff had first sought leave to amend. The court ordered the second defendant to give disclosure to the plaintiff within 7 days of the order and granted leave to all parties to file and serve written submissions on costs, if any, by 4pm on 15 May 2015. The court's decision was based on the principle that leave to amend should be granted freely unless there is a clear and substantial prejudice to the opposing party. The court found that the plaintiff had not acted unreasonably in seeking leave to amend and that the defendants had not demonstrated any prejudice that would result from the proposed amendments. The court's decision ensures that the plaintiff is able to pursue his claims without undue delay or prejudice and that the defendants are not unfairly disadvantaged by the proposed amendments.

Orders

Orders of the court

1. The plaintiff have leave to amend his Claim and Statement of Claim as advised and file the same within 14 days of this order.

2. All amendments are to take effect on and from 8 May 2015.

3. The second defendant give disclosure to the plaintiff pursuant to his duty to do so pursuant to r 211 of the UCPR, within 7 days of this order.

4. All parties have leave to file, and serve, written submissions on costs, if any, by 4pm on 15 May 2015.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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