Tubb v Reissig - [2013] TASSC 76

[2013] TASSC 76

COURT: SUPREME COURT OF TASMANIA

CITATION: Tubb v Reissig [2013] TASSC 76

PARTIES:  TUBB, Timothy James
  v
  REISSIG, Christopher Peter

FILE NO: 216/2013
JUDGMENT

APPEALED FROM: Reissig v Tubb [2013] TASMC 25

DELIVERED ON:  13 December 2013
DELIVERED AT:  Launceston
HEARING DATE:  12 December 2013
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Procedure under rules of court – Amendments – Whether learned magistrate erred in refusing appellant leave to amend defence.

Aust Dig Procedure [276]

REPRESENTATION:

Counsel:
             Appellant:  J Kitto
             Respondent:  K Stanton
Solicitors:
             Appellant:  J Kitto
             Respondent:  Bishops Barristers and Solicitors

Judgment Number: [2013] TASSC 76
Number of paragraphs: 33

Serial No 76/2013
File No 216/2013

TIMOTHY JAMES TUBB v CHRISTOPHER PETER REISSIG

REASONS FOR JUDGMENT ESTCOURT J

13 December 2013

The appeal

The appellant appeals on eleven grounds against a decision of Magistrate Pearce (as he then was) of 6 March 2013. His Honour entered judgment against the appellant (Timothy James Tubb) in the respondent's (Christopher Peter Reissig) action against him for contribution from the appellant in respect of a debt owed by a company of which the appellant and the respondent were both directors, and in respect of which they were both guarantors to the creditor.

Ground 10 of the notice of appeal asserts that the learned magistrate erred in refusing the appellant leave to amend his defence on the fourth day of a six day trial. I directed that this ground be heard before the hearing of any of the other grounds is embarked upon.

The background to the action before the magistrate

There were two actions by the respondent against the appellant which were heard together by the learned magistrate on 27 and 28 August 2012, 8 October 2012, 15 and 29 November 2012, and 19 December 2012. His Honour set out the background to those two actions at pars[3] - [12] of his reasons for decision as follows:

"3 Prior to 2006 Mr Tubb conducted business as an automotive mechanic through a company Dreem Mechanical Pty Ltd. Mr Reissig operated and still operates a building business through the company Chris Reissig Builders Pty Ltd. Mr Reissig and Mr Tubb, who had known one another for some time and become friends, commenced a business relationship. A solicitor, Melanie Kerrison of Rae and Partners, set up a unit trust called the C & T Unit Trust of which Mr Reissig and Mr Tubb were the trustees. Through the trust they engaged in the construction and sale of residential buildings. In 2006 they decided to buy a hotel together. They looked around for a suitable business and decided upon the Inveresk Tavern at 13-19 Dry Street Invermay in Tasmania. They sought advice from an accountant Mr Ronald Brown.
4 Rae and Partners acted as solicitors in the purchase. Mr Brown advised that a company should be incorporated to purchase the hotel business which consisted of a leasehold, plant and equipment and stock. Skyline Enterprises (Tas) Pty Ltd ('Skyline…

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 Tubb v Reissig

Details

AGLC: Tubb v Reissig [2013] TASSC 76
Case: [2013] TASSC 76
Decision Date: 13 December 2013

CaseChat Overview and Summary

The case of Tubb v Reissig was heard in the Supreme Court of Tasmania. The dispute involved an appeal by the appellant, Tubb, against a decision made by a learned magistrate. The magistrate had refused Tubb leave to amend his defence, which was a pivotal issue in the case. Tubb sought to amend his defence to include additional claims and arguments, which he believed were crucial for his case. The central legal issue before the court was whether the magistrate had correctly exercised his discretion in denying Tubb's request to amend his defence.

The court examined the principles governing amendments to pleadings under the Supreme Court rules of Tasmania. It was established that the court has a discretion to allow amendments, and this discretion should be exercised judicially. The court considered whether the magistrate had acted within the bounds of this discretion, taking into account factors such as the timing of the amendment, the potential prejudice to the opposing party, and the merits of the proposed amendment. The court found that the magistrate had indeed exercised his discretion appropriately, given the circumstances of the case.

After thorough deliberation, the court upheld the magistrate's decision, affirming that there had been no error in refusing Tubb's application to amend his defence. The court emphasised that the magistrate had considered the relevant factors and had acted in accordance with the legal principles governing such applications. The court concluded that the magistrate's decision was both sound and reasonable. As a result, Tubb's appeal was dismissed, and the magistrate's ruling stood affirmed.

Orders