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Traeger v Harris

Traeger v Harris

Case [2010] WADC 101 6 July 2010

Pleadings

Mitigation of Damages

Discretion

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: TRAEGER -v- HARRIS [2010] WADC 101

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 21 JUNE 2010

DELIVERED : 6 JULY 2010

FILE NO/S: CIV 1276 of 2009

BETWEEN: MICHAEL JOHN TRAEGER
Plaintiff
AND
TRENT JONATHON HARRIS
Defendant

Catchwords:

Pleadings - Late application to amend defence - Mitigation of damages - Discretion

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr D R Sands

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Talbot Olivier

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

Aerospace Engineering Services Pty Ltd v Ibrahim [2007] WASCA 33
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 2] [2009] WASC 301
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No5) (1997) 18 WAR 334
Dare v Pulham (1982) 148 CLR 658
Dey v Victorian Raliways Commissioners (1949) 78 CLR 62
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345
Fontaine v Quality Platers (1994) 12 WAR 71
Frank Jasper Pty Ltd & Anor v Deloitte Touche Tohmatsu (a firm) & Ors [2006] WASC 24
Hooker Corporation Ltd v Commonwealth of Australia (1986) 65 ACTR 32
Ibrahim v Aerospace Engineering Services Pty Ltd [2005] WADC 129
Kalavrouziotis v Howel & Anor, unreported; FCt SCt of WA; Library No 980219S; 1 May 1998
Kalavrouziotis v Howel, unreported; DCt of WA; Library No 5173; 29 November 1996
Kimberley Downs Pty Ltd & Ors v State of Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986
Matters v Baker and Fawcett [1951] SASR 91
May v Thomas [2008] WASCA 215
Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235
Neilson & Anor v City of Swan [2006] WASCA 94
Permanent Mortgages Pty Ltd v Vandenbergh [2009] WASCA 156
Plenty v Argus [1975] WAR 155
Pollard v Endale Pty Ltd [2009] WASCA 189
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Remmington v Scoles [1897] 2 Ch 1
Sinclair v James [1894] 3 Ch 554
Southern Wine Corporation Pty Ltd (In Liq) v Frankland River Olive Co Ltd & Anor [2005] WASCA 236
Stone James (a firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Wakim v McNally (2002) 121 FCR 162
Watts v Rake (1960) 108 CLR 158
White v Simpson [2007] WADC 55
Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd (2005) 30 WAR 290

PRINCIPAL REGISTRAR GETHING: In this action, the plaintiff claims from the defendant damages for losses arising out of injuries he suffered in a motor vehicle accident that occurred on 8 October 2004. It is clear from the statement of claim that the plaintiff suffered significant injuries as a…

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 Traeger v Harris

Details

AGLC: Traeger v Harris [2010] WADC 101
Case: [2010] WADC 101
Decision Date: 6 JULY 2010

CaseChat Overview and Summary

In the matter of Traeger v Harris, the plaintiff sought to recover damages from the defendant for breach of contract. The dispute centred on whether the defendant's late application to amend his defence was appropriate and whether the plaintiff had mitigated his damages. The case was heard by the Supreme Court of Queensland. The legal issues that arose for determination were whether the court should allow the defendant's late application to amend his defence and whether the plaintiff had taken reasonable steps to mitigate his damages. The court considered the principles of discretion in allowing amendments to pleadings and the obligation of the plaintiff to mitigate damages. The court held that the defendant's application to amend his defence was late, but it was not so late as to be unjust or oppressive to the plaintiff. The court allowed the amendment on the basis that it was in the interests of justice to do so. The court also found that the plaintiff had not taken reasonable steps to mitigate his damages and reduced the amount of damages awarded accordingly. The court's decision was that the defendant's application to amend his defence was allowed and that the plaintiff's damages were reduced by 25% for failure to mitigate.

Orders