Thorpe v NK Ceilings (1992) Pty Ltd

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JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   THORPE -v- NK CEILINGS (1992) PTY LTD [2009] WADC 162

CORAM:   PRINCIPAL REGISTRAR GETHING

HEARD:   12 OCTOBER 2009

DELIVERED          :   22 OCTOBER 2009

FILE NO/S:   CIV 1994 of 2006

BETWEEN:   ANDREW CECIL THORPE

Plaintiff

AND

NK CEILINGS (1992) PTY LTD (ACN 057 779 978)
Defendant

Catchwords:

Practice and procedure - Pleadings - Estoppel - Advocate's immunity

Legislation:

Legal Practice Act 2003 (WA) s 230, s 231

Result:

Application for leave to substitute defence successful

Representation:

Counsel:

Plaintiff:     Mr W J Chesnutt

Defendant:     Mr A R MacPherson

Solicitors:

Plaintiff:     B W Duckham & Co

Defendant:     Hotchkin Hanly

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

Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85

Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14

Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor (2006) 33 WAR 82

Carey v Wojtowicz Kelly Legal [2009] WASC 259

D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

Frank Jasper Pty Ltd v Deloitte Touche Tohmatsu (A Firm) [2006] WASC 24

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Giannarelli v Wraith (1988) 165 CLR 543

Hooker Corporation v Commonwealth (1986) 65 ACTR 32

Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365

Kimberley Downs Pty Ltd v State of Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986

Macmahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271

May v Thomas [2008] WASCA 215

Neilson v City of Swan [2006] WASCA 94

Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589

Sinclair v James [1894] 3 Ch 554

Southern Equities Corporation v WA Government Holdings Ltd (No. 2) (1993) 10 WAR 351

Staley v Pivot Group Pty Ltd [2009] WASC 204

Thorpe v N K Ceilings (1992) Pty Ltd [2007] WADC 41

Thorpe v N K Ceilings (1992) Pty Ltd [2008] WADC 5

Vero Insurance Ltd v Harden-Jones & Anor [2007] WADC 210

Youlden Enterprises Pty Ltd v Heath Solutions (WA) Pty Ltd (2006) 33 WAR 1

  1. PRINCIPAL REGISTRAR GETHING:  The application before me is by the defendant for leave to further amend the defence and counterclaim. 

  2. The action has a long and unfortunate history.  The original defence and counterclaim was filed on 9 November 2006.  This was in response to the statement of claim indorsed on the writ which was filed on 16 October 2006. 

  3. On 6 November 2006 the defendant filed an application for summary judgment.  This was heard on 23 February 2007 and ultimately dismissed by orders made on 3 April 2007.  The reasons for this decision are reported as Thorpe v N K Ceilings (1992) Pty Ltd [2007] WADC 41.

  4. On 1 December 2006 the plaintiff filed an application to strike out the defence.  This application was listed for substantive hearing on 28 May 2007, having been in abeyance while the summary judgment application was determined.  On 24 May…

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Details
Case
[2009] WADC 162
Decision Date

CaseChat Overview and Summary

In the case of Thorpe v NK Ceilings (1992) Pty Ltd, the dispute centred on the adequacy of the defendant’s pleadings and the potential for estoppel in the context of amending those pleadings. The plaintiff argued that the defendant's pleadings were insufficient and sought to have them dismissed, while the defendant argued that the pleadings were adequate and should be allowed to stand. The matter was heard in the Supreme Court of Queensland.

The primary legal issues that the court had to decide were whether the defendant's pleadings were adequate, and if the plaintiff was estopped from challenging the adequacy of those pleadings. The court was required to determine if the defendant had been given specific leave to amend their pleadings, and if the plaintiff had an opportunity to object to the adequacy of those pleadings. The court also needed to decide whether the plaintiff could challenge the adequacy of the pleadings on the basis that they were vague or did not adequately plead consideration.

The court concluded that the defendant had not been given specific leave to amend its pleadings, but rather general leave to amend following the identification of issues in prior pleadings. The court proceeded on the basis of the narrow principle, which meant that the plaintiff was estopped from challenging the adequacy of the pleadings. The court found that the pleadings, while not perfect, were sufficient and could be amended to address minor deficiencies. The court ordered that the defendant’s pleadings be allowed to stand, subject to the minor amendment regarding the Supreme Court proceedings.

The court’s decision was that the defendant's pleadings, despite their deficiencies, were permissible and the plaintiff was estopped from challenging them. The court ordered that the pleadings be allowed to stand, subject to the insertion of a further paragraph clarifying the Supreme Court proceedings. This decision was based on the court's finding that the plaintiff had not objected to the adequacy of the pleadings when given the opportunity to do so, and that the defendant had been given general leave to amend their pleadings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

There seems to be a wide principle and a narrow principle able to be drawn from the decision in Southern Equities Corporation (supra). The wide principle is that it is sufficient that the party has the opportunity to object to the adequacy of a proposed pleading which is before a court to disentitle it from further challenge to that pleading. This would apply in the present case. The narrow principle is that where the court gives leave to a party to amend its pleading, the court will not allow an opposing party to subsequently challenge the adequacy of the pleading. In the present case, I cannot see that the defendant has ever been given leave to amend in terms of a particular minute. It has only ever been given general leave to amend subsequent to issues being identified in a prior minute or filed pleading. Given the torturous history of this pleading from both the perspective of the plaintiff and the defendant, it seems to me appropriate that, across the board, I focus on the substance of the issues raised and deal with them once and for all. Accordingly, I will proceed on the basis of the narrow principle. In any event, this will cause no prejudice to the defendant as I have ultimately formed the view that the pleading ought to be allowed substantively, with one minor amendment. The plaintiff submits the whole of par 9 is embarrassing as the matters pleaded cannot give arise to any estoppel. It makes this submission generally, but also on the basis of a number of specific areas of concern. The first concern is that there is no pleading anywhere in par 9 of the Minute that makes it plain what the Supreme Court proceedings LPA 24 of 2005 was concerned with. In oral argument, it was clear that this action was the "application to the Supreme Court for an extension of time" in par 7 of the statement of claim. Whilst this objection has merit, it can be easily cured by the insertion of a further paragraph into par 9 to the effect that the application to the Supreme Court in par 7 of the statement of claim is Supreme Court proceedings LPA 24 of 2005. The plaintiff further complains that there is no explanation as to what happened in Supreme Court proceedings LPA 24 of 2005 or about the outcome of the proceedings or even whether it is still on foot. In my view, there is no need for the defendant to refer to this in order to establish an estoppel. If there is some specific aspect of the proceeding which the plaintiff considers relevant, he is able to plead this by way of reply. The plaintiff next complains that the pleading of the alleged agreement for consent orders is too vague to be sustained. However, it is more specific than the pleading in par 7 of the statement of claim. If there are specific particulars that the plaintiff desires then he may ask for those, as may the defendant of the agreement set out in par 7 of the statement of claim. The plaintiff complains that there does not appear to be any consideration passing from the defendant to the plaintiff for the making of the alleged agreement. Once again, the pleading in par 9 in the Minute is in considerably more detail than that in par 7 of the statement of claim. Moreover, there is no specific need to plead consideration. It is patent from the face of the agreement set out in par 9 of the Minute that there was a mutual exchange of promises.