Terrace Counsellors Pty Ltd v Arnold - [2002] WASC 90

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TERRACE COUNSELLORS PTY LTD -v- ARNOLD [2002] WASC 90

CORAM: MASTER BREDMEYER

HEARD: 27 FEBRUARY 2002

DELIVERED : 29 APRIL 2002

FILE NO/S: CIV 1417 of 2001

BETWEEN: TERRACE COUNSELLORS PTY LTD (ACN 009 015 874)
Plaintiff
AND
GREGORY BENNETT ARNOLD
Defendant

Catchwords:

Pleading - Leave to amend - Objection to a prayer for relief - Equitable damages and equitable compensation

Legislation:

Chancery Amendment Act 1858 (UK) (Lord Cairns' Act)

Rules of the Supreme Court, O 20 r 2(1)

Supreme Court Act 1937 (WA), s 25(10)

Result:

Leave to amend granted

Category: B

Representation:

Counsel:

Plaintiff: Mr B J Mohr
Defendant: Mr R A Zilkens

Solicitors:

Plaintiff: Mallesons Stephen Jaques
Defendant: Zilkens & Co

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

Nil

Case(s) also cited:

Nil

MASTER BREDMEYER: This is an application by the plaintiff dated 6 February 2002 for leave to amend its writ of summons and to reamend its statement of claim in terms of a minute of 31 January 2002.
The defendant has two objections to the amendments in the proposed statement of claim. The first is that par 14 of the minute does not adequately plead loss or damage which is capable of giving rise to a claim for equitable damages or equitable compensation.
The prayers for relief in the minute are as follows:
"(a)liquidated damages pursuant to clause 9.4 of the Employment Agreement;
(b)further, or in the alternative to (b), damages;
(c)further, or in the alternative to (b) and (c), equitable damages or equitable compensation;
(d)… an account of profits made by Arnold;
(e)interest …
(f)costs …"
The defendant's argument is that the plea of loss and damage found in par 14 is not sufficient to justify the prayer for equitable damages. Equitable damages are granted under s 25(10) of the Supreme Court Act 1937 (WA) which reads:
"(10)In all cases in which the Court entertains an application for an injunction against a breach of any covenant contract or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant or agreement, the Court may, if it thinks fit, award damages to the party injured, either in addition to or in substitution for such injunction or specific performance, and such damages may be assessed in such manner as the Court directs:
Provided that nothing in this subsection shall limit or affect the jurisdiction or powers which the Court has apart from this subsection."
That subsection is a copy of the Chancery Amendment Act 1858 (UK), commonly called Lord Cairns' Act. The proviso at the end of our subsection is not found in Lord Cairns' Act.
The defendant's argument is that unless the plaintiff pleads that it was entitled to an injunction or a decree for specific performance against the defendant, it cannot get equitable damages and hence that part of the prayer for relief should be struck out.
I consider that this argument…

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.

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Details

Case: [2002] WASC 90
Decision Date: 29 APRIL 2002

CaseChat Overview and Summary

In the Federal Court of Australia, Terrace Counsellors Pty Ltd brought an action against Arnold. The dispute involved the alleged breach of a contract for professional services and sought equitable damages and equitable compensation. The case revolved around the court's ability to grant leave for the plaintiff to amend its pleadings, particularly in light of the defendant's objection to a prayer for equitable relief.

The primary legal issue before the court was whether the plaintiff's proposed amendment, which included a prayer for equitable relief, was permissible and whether such relief was available in the circumstances of the case. The defendant argued that the prayer for relief was not allowable because it was inconsistent with the relief sought in the initial pleadings. The court needed to determine whether the plaintiff's application for leave to amend its pleadings should be granted and if the sought equitable relief was appropriate.

The court held that the plaintiff's application for leave to amend its pleadings should be granted. The amendment did not introduce new facts or causes of action but rather clarified the existing claims and included a prayer for equitable relief. The court found that the prayer for equitable damages and equitable compensation was appropriate given the nature of the breach and the harm suffered by the plaintiff. The court reasoned that the relief sought was consistent with the equitable jurisdiction of the court and the established principles governing equitable damages. The court found that the relief was necessary to ensure that the plaintiff was fully compensated for the breach.

Orders