The Duke Group Ltd (in Liquidation) v Angus Claymore Pilmer, Alan Robert Crawford, Domenic Vincent Martino, Peter John Messer, Peter Lawson Munachen, Geoffrey James Stokes and Robert John Gray (Defendants) and.. - [1993] SASC 4244

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Practice - Practice and procedure - application for leave to amend to join third parties as defendants and to make consequential amendments to statement of claim - common questions of law and fact - proposed amendments not for an improper purpose - no grounds for stay as an abuse of process - delay in trial no reason to refuse application - amendments must be made so as to avoid inconsistency in pleading - leave granted. Supreme Court Rules 1988 RR 27 and 46.09(1) and (2) considered; Williams and Ors v Spauts (1992) 174 CLR 509 and Walton v Gardiner (1993) 112 ALR 289 referred to.

HRNG ADELAIDE, 17 September 1993 #DATE 3:11:1993
Counsel for plaintiff:             Mr T Gray QC with Mr S J
   Lipman and Mr D'arcy
Solicitors for plaintiff:         Fisher Jeffries
Counsel for defendants:            Mr S T Lane
Solicitors for defendants:         Phillips Fox
Counsel for first 3d parties:     Dr R J Baxter
Solicitors for first 3d parties: Johnston, Winter and Slattery
Counsel for first 3d parties:     Mr D M Quick QC for Abbott
   and Mr W F Taylor for Somes
   and Lee-Steere
Solicitors for first 3d parties: Ward and Partners
   and Hume Taylor and Co

ORDER
Leave granted to the plaintiff to amend the summons so as to join the proposed defendants as defendants in the action and to amend the statement of claim as proposed subject to compliance with the Rules of Court.

JUDGE1 MULLIGHAN J This is an application by the plaintiff for leave to amend the summons so as to join the first third parties, Quilty and Singleton and the second third parties, Abbott, Somes and Lee-Steere as defendants in this action. I shall refer to them collectively as "the proposed defendants". 2. Each of them is already a third party in the action in consequence of third party proceedings of the defendants. The plaintiff also seeks leave to amend the statement of claim in accordance with the draft amended statement of claim which incorporates the proposed pleading against each of the proposed defendants. 3. Thus far, the plaintiff has sued the defendants who were, at all material times practising accountants for damages for alleged breach of contract and negligence in the preparation of an alleged valuation of Western United Limited said to have been provided to the plaintiff and a report for the purposes of rule 3J(3) of the listing rules of the Australian Stock Exchange Limited in connection with the takeover of Western United Limited by the plaintiff. The defendants deny that they have been in breach of contract or guilty of negligence, but allege that if they are liable to the plaintiff in damages, they are entitled to indemnity or contribution from each of the proposed defendants. They issued third party proceedings against the proposed defendants on 31st March 1993. The third party claims against Quilty and Singleton are made on a different basis than the claims against Abbott, Somes and Lee-Steere.…

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

AGLC: The Duke Group Ltd (in Liquidation) v Angus Claymore Pilmer, Alan Robert Crawford, Domenic Vincent Martino, Peter John Messer, Peter Lawson Munachen, Geoffrey James Stokes and Robert John Gray (Defendants) and.. [1993] SASC 4244
Case: [1993] SASC 4244
Decision Date: 3 November 1993

CaseChat Overview and Summary

The case involves The Duke Group Ltd (in Liquidation) as the plaintiff seeking to amend its summons to join third parties as defendants and make consequential amendments to the statement of claim. The defendants and proposed third parties are contesting the application, arguing that the joinder is an abuse of process, will delay the trial, and is inconsistent with the plaintiff's existing pleadings. The Supreme Court of South Australia, presided over by Mulligan J, was required to decide whether the plaintiff's application to amend the summons and statement of claim should be granted. The court considered the relevant rules of court, Supreme Court Rules 1988 RR 27 and 46.09(1) and (2), and referred to previous cases, Williams and Ors v Spauts (1992) 174 CLR 509 and Walton v Gardiner (1993) 112 ALR 289, to determine whether the proposed joinder of third parties was appropriate. Mulligan J concluded that the application fell within the criteria of R.27.01, as the issues in the third party proceedings and the proposed proceedings raised common questions of law and fact. The court found no evidence of an improper purpose on the part of the plaintiff and rejected the argument that the joinder would be oppressive to the proposed third parties or result in an inconsistent pleading. The court granted leave for the plaintiff to amend the summons and statement of claim, subject to compliance with the Rules of Court, including R.46.09(1) and (2).

Orders