Sullivan v Van der Broek - [1999] NSWSC 1177

CITATION: Sullivan v Van der Broek [1999] NSWSC 1177

CURRENT JURISDICTION: Common Law Division
Professional Negligence List

FILE NUMBER(S): 20402 of 1997

HEARING DATE(S): 22 November 1999

JUDGMENT DATE:
3 December 1999

PARTIES :

Peter Hunt (First Appellant)
Simon Alderson-Hicks (Second Appellant)
Harley Fraser (Third Appellant)
Douglas Alan Perry (Fourth Appellant)
William John Sullivan (Respondent)

JUDGMENT OF: Windeyer J at 1

LOWER COURT JURISDICTION: Supreme Court (Master)

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Master Harrison

COUNSEL : N. Cotman SC (First, Second and Third Appellants)
A. Colefax (Fourth Appellant)
B. Walker SC with him C Loveday (Respondent)

SOLICITORS: Kelvin D. Currie (First, Second and Third Appellants)
Mallesons Stephen Jaques (Fourth Appellant)
Clayton Utz (Respondent)

CATCHWORDS: PRACTICE AND PROCEDURE - Supreme Court procedure - amendment - amendment to names of parties - substitution of 9 defendants (including original 5 defendants) for original 5 defendants - whether within Pt20 r4(3) - appeal from Master's order allowing amendment - appeal allowed

CASES CITED: Bridge Shipping Pty Ltd v Grand Shipping South Australia (1991) 173 CLR at 231
Evans Constructions Co Limited v Charrington & Co Limited [1983] QB 810
Fernance v The Nominal Defendant (1989) 17 NSWLR 710
Greentree v G.D. Searle & Company (unreported 31 July 1992)
Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 QdR 153
Mitchell v Harris Engineering Company Limited [1967] 2 QB 703

DECISION: Appeal allowed

8
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST
WINDEYER J
FRIDAY 3 DECEMBER 1999
20402/97 WILLIAM JOHN SULLIVAN v WILFRIED PETER VAN DEN BROEK & 4 ORS
JUDGMENT
1 This is an appeal from a decision of Master Harrison of 14 September 1998 under which, pursuant to SCR Pt20 r4(3), she gave leave to the plaintiff to amend the statement of claim by substituting for the five defendants originally named, new defendants including the original five and four more. It is unfortunate that an appeal on a procedural question, which was estimated, correctly, to have a hearing time of two to three hours, should have had to wait fourteen months before determination with the result that the action could make no progress during that time as the parties to it were not finally ascertained.
2 The relevant facts are set out in the Master's judgment. I do not intend to repeat them because there is no contention about them and they can be read in pages 1 to 6 of her judgment. In summary, as she explained, the plaintiff was injured on 23 November 1991, when taking part in the mud jump at a Galah Day organised by the Nambucca Valley Galah Day Association, at a property known as "Willow Bend" owned by Mr and Mrs Van Der Broek, the first and second defendants. After making various inquiries and seeking information as to the members of the committee, the plaintiff by statement of claim filed on 16 December 1992: in paragraph 1, sued the first, second, third, fourth and fifth…

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 Sullivan v Van der Broek

Details

AGLC: Sullivan v Van der Broek [1999] NSWSC 1177
Case: [1999] NSWSC 1177
Decision Date: 3 December 1999

CaseChat Overview and Summary

The case of Sullivan v Van der Broek involves a legal dispute where the plaintiff sought to amend the names of the defendants in the proceedings. The matter was before the Supreme Court of New South Wales, where the plaintiff appealed against a Master's order that allowed the amendment of the parties involved in the litigation. The amendment sought to substitute nine defendants, including the original five, in place of the original five defendants. The core legal issue before the court was whether the amendment fell within the scope of Part 20 Rule 4(3) of the Supreme Court Rules 2000.

The court considered whether the amendment of parties under Part 20 Rule 4(3) of the Supreme Court Rules 2000 permitted the substitution of nine defendants for the original five. The plaintiff argued that the amendment was permissible, while the defendants contended that the amendment was not within the prescribed limits of the rule. The court had to examine the specific provisions of the rule and determine whether the amendment was procedurally valid and whether it complied with the requirements for substituting parties in the litigation. In its reasoning, the court concluded that the amendment was not permissible under Part 20 Rule 4(3) as it exceeded the intended scope of the rule by substituting more defendants than allowed.

Consequently, the court allowed the appeal and set aside the Master's order permitting the amendment. The court held that the amendment did not fall within the allowable scope under Part 20 Rule 4(3) of the Supreme Court Rules 2000. The court further directed that the proceedings should continue with the original five defendants as parties. This decision underscores the importance of adhering to the procedural rules when seeking to amend the names of parties in litigation.

Orders