Sure Air Pty Ltd v Simonds
[2000] WADC 255
•19 OCTOBER 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SURE AIR PTY LTD -v- SIMONDS [2000] WADC 255
CORAM: COMMISSIONER GREAVES
HEARD: 26 SEPTEMBER 2000
DELIVERED : 19 OCTOBER 2000
FILE NO/S: CIV 1449 of 1997
BETWEEN: SURE AIR PTY LTD
Plaintiff
AND
CRAIG SIMONDS
Defendant
Catchwords:
Procedure - Application to amend statement of claim by adding cause of action in deceit after expiry of limitation period - Cause of action in deceit arising out of same facts or substantially same facts as the cause of action pleaded - Application allowed - Rules of the Supreme Court O 21 r 5(2) and r 5 - Procedure - Application to strike out part of statement of claim as statute barred - Question whether claims statute barred dependant upon when loss arose - Delay on part of defendant in making application - Application refused - Rules of the Supreme Court O 19 r 1(d)
Legislation:
Supreme Court Rules 1971
Trade Practices Act 1974
Result:
Plaintiff's application for leave to amend allowed and the defendant's application dismissed
Representation:
Counsel:
Plaintiff: Mr P Mendelow
Defendant: Mr A Atkinson
Solicitors:
Plaintiff: Murfett & Co
Defendant: Solomon Brothers
Case(s) referred to in judgment(s):
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Case(s) also cited:
Harris v Western Australian Exim Corporation (1994) 56 FCR 1
Hawkins v Clayton (1988) 164 CLR 539
Karedis v Antoniou (1995) 59 FCR 35
Morgan v Banning (1999) 20 WAR 474
Robinson v Adshead (No 2) (1995) 12 WAR 577
Southern Equities Corporation v Western Australian Government Holdings Ltd (No 2) (1993) 10 WAR 351
State of Western Australia v Wardley (1991) 30 FCR 245
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Trade Practices Commission v Pioneer Concrete (Queensland) Pty Ltd & Ors (1994) 124 ALR 685
COMMISSIONER GREAVES: This is an application by the plaintiff for leave to amend its statement of claim in accordance with the minute of proposed amended statement of claim dated 9 March 2000 and an application by the defendant made in August 2000 that the plaintiff's claim for misleading and deceptive conduct relating to transactions which took place prior to 10 September 1994 be struck out by virtue of the fact that it is barred pursuant to s 79(2) of the Trade Practices Act 1974. The plaintiff's application is supported by affidavit of Brian Philip Wheatley sworn 18 September 2000 and the defendant's application is supported by the affidavit of Alexander Atkinson sworn 14 September 2000. Both applications are opposed.
The plaintiff's application for leave to amend the statement of claim
This application is pursuant to O 21 r 5 subrules 2 and 5, which provide:
"(2)Where an application to the court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.
(5)An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."
The original writ in this action was issued on 30 April 1997. It contained a statement of claim by which it was alleged that the plaintiff would employ the defendant as its manager. It was further alleged that the defendant was at all material times a director of the plaintiff in which capacity it was alleged the defendant owed the plaintiff a duty to act honestly in the exercise of his powers and the discharge of the duties of his office as director. The plaintiff alleged that in breach of those duties, the defendant failed to act honestly and in the best interests of the company.
In September 1997, the plaintiff amended its statement of claim by consent where it repeated the allegations which I have referred to at par 38, par 39, par 40, par 41 inclusive of the amended statement of claim.
By par 32 of the amended statement of claim, the plaintiff alleged that the defendant requested it to purchase certain goods and incur certain expenses. The plaintiff then alleged in par 33 et seq of the amended statement of claim:
"33.None of the amounts referred to in paragraph 32 above were used by the defendant to pay any business expense of the company or for the benefit of the company.
34.In acting as set out in paragraph 32.1 above, the defendant thereby made representation with respect to a future matter.
35.In making the representation referred to in paragraph 34 above, the defendant had no reasonable grounds and thereby engaged in conduct which was misleading.
Particulars
The plaintiff relies upon section 9 of the Fair Trading Act."
The plaintiff made a similar allegation in par 10 of the amended statement of claim.
By par 9, par 10 and par 11, and par 27, par 28 and par 29 of the minute of proposed amended statement of claim dated 28 June 2000, the plaintiff now seeks to amend his plea of misleading and deceptive conduct on the part of the defendant by alleging that the defendant acted deceitfully when he requested the plaintiff to purchase goods or incur expenses which it is alleged he then well knew were not for the benefit of the plaintiff.
Counsel for the defendant submitted that the proposed claim in deceit based on the same facts as the existing action for misleading and deceptive conduct amounts to a new cause of action which is now statute barred.
It seems to me first necessary to observe that O 21 r 5 does not give the Court a general power to allow an amendment to a statement of claim notwithstanding the expiry of a period of limitation in a case which does not fall within subrule 5. See Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431 at 432, 439.
Counsel for the defendant submitted that a claim for deceit is a new cause of action whether it relies on the same transactions as the existing claim for misleading and deceptive conduct or not. He submitted, therefore, that O 21 r 5(5) has no application in the present circumstances and the court may not grant leave to amend as proposed. In my opinion, in this case, the cause of action in deceit is new to the statement of claim and maybe added pursuant to O 21 r 5 because it is alleged to arise out of the same facts or substantially the same facts as the cause of action in respect of which relief has already been claimed in the action by the plaintiff.
Counsel for the defendant also relied upon a submission that in any event the Court should not grant leave to amend because of the plaintiff's delay for which he said there had been no satisfactory explanation from the end of 1999 onwards. Given the contents of Mr Wheatley's affidavit, I do not accept that submission.
Defendant's application to strike out plaintiff's claim for misleading and deceptive conduct
I have already described the circumstances in which it appears the plaintiff amended its statement of claim in September 1997 by consent. Counsel for the defendant submitted that at the time of filing the amended statement of claim on 10 September 1997 the claims with respect to cheques 1 to 21 in schedule B and cheques 1 to 13 in schedule D were time barred and should be struck out. Counsel for the plaintiff submitted that the present application is incompetent because the amendment was made by consent at which time the defendant raised no issue of limitation. He further submitted that any question whether part of the plaintiff's claim is statute barred in this case must depend upon when the alleged loss or losses arose, which is a question of fact to be determined by reference to when the disadvantageous character of the transaction is ascertained or ascertainable. I accept that submission. It seems to me to be a question, if at all, for the trial judge. Further, in my opinion it is quite plain that the defendant's strike out application has been brought late in the day.
Conclusion, consequential orders, pleadings and further directions
In my opinion, therefore, the plaintiff's application for leave to amend should be allowed with consequential leave to the defendant to amend his defence with further leave to the plaintiff to amend the reply. The defendant's application should be dismissed. Counsel for the defendant submitted that par 6 of the minute of proposed amended statement of claim is embarrassing. Having determined these two applications, I shall hear counsel further on such directions as may be necessary in this regard. I shall also hear counsel on such directions as may be necessary to ensure that this action is listed for an early trial.
0
1
2