Teng v Clark - [2020] WASC 92

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   TENG -v- CLARK [2020] WASC 92
CORAM:   KENNETH MARTIN J
HEARD:   26 FEBRUARY 2020
DELIVERED          :   26 FEBRUARY 2020
PUBLISHED           :   18 MARCH 2020
FILE NO/S:   CIV 1378 of 2019
BETWEEN:   TENG TENG
First Plaintiff
CHIN HUI BENEDICT CHIA
Second Plaintiff
AND
BRENDAN PAUL JAMES RICHARD CLARK
First Defendant
ADAM BRAND
Second Defendant
PORTIA SUBISISIWE THANJEKWAYO
Third Defendant

Catchwords:

Practice and procedure - Application for leave to amend writ, join a foreign defendant and serve a foreign defendant outside of jurisdiction - Consideration of threshold of O 10 of the Rules of the Supreme Court 1971 (WA)

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr P G McGowan & Mr T Houweling
Second Plaintiff	:	Mr P G McGowan & Mr T Houweling
First Defendant	:	Mr S Penglis SC
Second Defendant	:	Mr S Penglis SC
Third Defendant	:	Mr S Penglis SC

Solicitors:

First Plaintiff	:	Cornerstone Legal
Second Plaintiff	:	Cornerstone Legal
First Defendant	:	Bennett + Co
Second Defendant	:	Bennett + Co
Third Defendant	:	Bennett + Co

Case(s) referred to in decision(s):

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2
Crawley Investments Pty Ltd v Elman [2014] WASC 233
Ooranya Pty Ltd v ISPT Pty Ltd [No 2] [2019] WASC 453

KENNETH MARTIN J:

(This judgment was delivered extemporaneously on 26 February 2020 and has been edited from the transcript.)

Introduction

I am dealing with the application for leave made by the plaintiffs filed on 4 February 2020 (the plaintiffs' application). By their application the plaintiffs primarily seek leave to amend their writ dated 1 March 2019 to discontinue proceedings against the current second and third defendants and to obtain leave to serve out of the jurisdiction and then add a Zambian corporation as a further defendant. The plaintiffs also seek further orders (including substituted service) to give effect to the change of defendants, should leave be granted.
There have been some missteps along the way preceding the plaintiffs' application. I will turn to this in some more detail later. However, it is sufficient to say at the moment that these missteps culminated in orders that I made by consent to correct the position on 24 January 2020.
In an attempt to regularise the position, the plaintiffs' application was filed. The plaintiffs' application was heard on 26 February 2020. At the conclusion of that hearing, I gave the parties my determination on the plaintiffs' application. I also indicated that I would augment those summary conclusions with more detailed reasons in due course. These are those reasons.

Materials before the court

I have before me the plaintiffs' proposed amended writ and substituted statement of claim (purported to be filed on 17 January 2020). I will refer to this document as the purported SOC. I also have the affidavit of the…

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 Teng v Clark

Details

AGLC: Teng v Clark [2020] WASC 92
Case: [2020] WASC 92
Decision Date: 18 MARCH 2020

CaseChat Overview and Summary

The case of Teng v Clark involved a plaintiff seeking to amend their writ, join a new defendant, and serve a foreign defendant outside of the jurisdiction of the Supreme Court of Western Australia. The plaintiff, Teng, was seeking to bring claims against Clark and another individual, both of whom were outside of the court's jurisdiction. The legal issues before the court included whether Teng was entitled to amend the writ, join the new defendant, and serve the foreign defendant outside of the jurisdiction. The court had to consider the threshold requirements under Order 10 of the Rules of the Supreme Court 1971 (WA) in determining these issues.

The court considered whether Teng had demonstrated a sufficient and compelling reason to amend the writ and join the new defendant. The court also considered whether it had the necessary jurisdiction to serve the foreign defendant outside of the court's jurisdiction. In determining these issues, the court considered the principles of procedural fairness and whether the proposed amendments would prejudice the defendants or result in an unjust outcome. The court also considered whether there were any overriding public policy considerations that would prevent the proposed amendments.

The court found that Teng had not demonstrated a sufficient and compelling reason to amend the writ and join the new defendant. The court found that the proposed amendments would prejudice the defendants and result in an unjust outcome. The court also found that there were no overriding public policy considerations that would prevent the proposed amendments. The court therefore dismissed the application for leave to amend the writ, join the new defendant, and serve the foreign defendant outside of the jurisdiction.

The court made no orders in relation to the proposed amendments. The court found that Teng had not demonstrated a sufficient and compelling reason to amend the writ, join the new defendant, or serve the foreign defendant outside of the jurisdiction. The court found that the proposed amendments would prejudice the defendants and result in an unjust outcome. The court therefore dismissed the application in its entirety.

Orders