Vintage Developments Pty Limited v GHD Pty Limited - [2006] FCA 531

FEDERAL COURT OF AUSTRALIA
Vintage Developments Pty Limited v GHD Pty Limited FCA [2006] 531
PRACTICE & PROCEDURE – application for joinder – amended application and further amended statement of claim naming additional respondent filed within limitation period but without leave – notice of motion seeking leave for the joinder filed after limitation period expired – defects in compliance with the Rules – pleading not a nullity and capable of commencing a cause of action within limitation period – Court has express power under the rules to grant leave for joinder after the event of the joinder: O 6 r 4 – discretionary consideration – application for joinder granted
Federal Court Rules (Cth) O 6 rr 2, 4, O 13 rr 2, 7, 8
Trade Practices Act1974 (Cth) s 75B
Fair Trading Act1987 (NSW) s 42
Cerche v Commissioner of Taxation [2001] FCA 1146
Donne v Lewis (1805) 32 ER 1221
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Emanuele v Australian Securities Commission (1997) 188 CLR 114
Grounsell v Cuthell and Linley [1952] 2 QB 673
Trade Practices Commission v Westco Motors Distributors Pty Ltd (1981) 58 FLR 384
Universal Music Australia Pty Ltd v Cooper [2004] FCA 78
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337
Warner Music Australia Limited v Swiftel Communications Pty Ltd [2005] FCA 1127
VINTAGE DEVELOPMENTS PTY LIMITED (ACN 067 567 006) AND ERROL INVESTMENTS PTY LIMITED (ACN 001 183 277) v GHD PTY LIMITED
(ACN 008 488 373), HUNTER VALLEY ESTATES PTY LTD (ACN 010 857 717), GHD PTY LIMITED (ACN 008 488 373) AND HUNTER VALLEY ESTATES PTY LTD (ACN 010 857 717)
NSD 1262 OF 2005
BENNETT J
11 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1262 OF 2005

BETWEEN:

VINTAGE DEVELOPMENTS PTY LIMITED
(ACN 067 567 006)
FIRST APPLICANT

ERROL INVESTMENTS PTY LIMITED (ACN 001 183 277)
SECOND APPLICANT

AND:

GHD PTY LIMITED (ACN 008 488 373)
FIRST RESPONDENT

HUNTER VALLEY ESTATES PTY LTD (ACN 010 857 717)
SECOND RESPONDENT

GHD PTY LIMITED (ACN 008 488 373)
CROSS-CLAIMANT

HUNTER VALLEY ESTATES PTY LTD (ACN 010 857 717)
CROSS-RESPONDENT

JUDGE:

BENNETT J

DATE OF ORDER:

11 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
Leave be granted to the Applicants pursuant to O 6 r 2 of the Federal Court Rules to join Grant Heaton Johnston as the third respondent to the proceedings.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1262 OF 2005

BETWEEN:

VINTAGE DEVELOPMENTS PTY LIMITED
(ACN 067 567 006)
FIRST APPLICANT

ERROL INVESTMENTS PTY LIMITED (ACN 001 183 277)
SECOND APPLICANT

AND:

GHD PTY LIMITED (ACN 008 488 373)
FIRST RESPONDENT

HUNTER VALLEY ESTATES PTY LTD (ACN 010 857 717)
SECOND RESPONDENT

GHD PTY LIMITED (ACN 008 488 373)
CROSS-CLAIMANT

HUNTER VALLEY ESTATES PTY…

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: [2006] FCA 531
Decision Date: 11 MAY 2006

CaseChat Overview and Summary

The case of Vintage Developments Pty Limited v GHD Pty Limited involved a dispute regarding the joinder of a third party to the proceedings. Vintage Developments sought to join Grant Johnson as a third respondent to the Federal Court, arguing that his joinder was within the statutory limitation period. The court was required to decide whether the joinder was permissible under the Federal Court Rules and if any prejudice would result from allowing the joinder.

The court examined the timing of the joinder, noting that Johnson was joined on 2 December 2005, well within six years of the contract date between Errol and Vintage Developments. The court also considered the discretionary nature of granting leave for joinder under the Federal Court Rules and assessed whether the delay and potential limitation issues warranted denial of the application. The court concluded that there was no compelling reason to deny the joinder, as no significant prejudice would result from allowing it.

The court granted leave for Johnson to be joined as a third respondent, noting that the costs of the amendment should be addressed separately. The court acknowledged that Vintage Developments could have initiated separate proceedings but opted for an amended statement of claim, which did not result in relevant prejudice. The decision emphasized the discretionary nature of the court's power to grant joinder and the lack of unreasonable opposition from Johnson regarding the limitation aspect.

The final orders included granting leave to Vintage Developments to join Grant Heaton Johnson as the third respondent in the proceedings, with the issue of costs to be addressed at a later hearing. This decision underscores the court's approach to joinder applications, balancing the timing and potential prejudice with the discretionary power to allow such amendments.

Orders

Orders of the court

Leave be granted to the Applicants pursuant to O 6 r 2 of the Federal Court Rules to join Grant Heaton Johnston as the third respondent to the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BENNETT J

I am not satisfied that summary judgment could be entered by the respondent (Universal Music Australia Pty Ltd v Cooper [2004] FCA 78; Warner Music Australia Limited v Swiftel Communications Pty Ltd [2005] FCA 1127).Conclusion I accept Vintage’s submission that :(a)Grant Johnson was joined to the proceedings on 2 December 2005, when the amended application and FASC were filed in the registry of the Court.(b)Grant Johnson’s joinder on that day was within 6 years after the date on which Errol entered into the contract to purchase the property (on 4 December 1999).(c)The Court has express power under the rules to grant leave for joinder after the event of the joinder: O 6 r 4. The decision whether or not to join Mr Johnston is discretionary. I have considered the various matters, including the delay and the arguable case with respect to the limitation period as well as the prejudice occasioned to the parties if he is or is not joined. Instead of pleading the cause of action against Mr Johnston in the FASC, Vintage could simply have commenced separate proceedings and filed those on 2 December 2005. An order could then have been made to consolidate the proceedings with those already commenced, as the same questions of fact and law arise. This is a further indication that no relevant prejudice has been occasioned by the filing of the further amended statement of claim. There is no compelling, or indeed persuasive, discretionary reason not to grant leave to the applicants. I grant leave to Vintage to join Mr Johnston as the third respondent in the proceedings. Ms Richards submits that the costs should be costs in the proceeding or that they be reserved to await the outcome of the hearing of the matter. In the ordinary course, an applicant for leave to amend would pay the costs of the amendment. If a respondent unreasonably opposes the amendment, that respondent may be ordered to pay costs. I am not of the view that Mr Johnston was unreasonable in opposing joinder insofar as the limitation aspect was concerned. I will hear the parties on the question of costs.

Ratio Decidendi

Legal Principle Established

Established by: BENNETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1262 OF 2005

BETWEEN:	VINTAGE DEVELOPMENTS PTY LIMITED (ACN 067 567 006) FIRST APPLICANT ERROL INVESTMENTS PTY LIMITED (ACN 001 183 277) SECOND APPLICANT
AND:	GHD PTY LIMITED (ACN 008 488 373) FIRST RESPONDENT HUNTER VALLEY ESTATES PTY LTD (ACN 010 857 717) SECOND RESPONDENT GHD PTY LIMITED (ACN 008 488 373) CROSS-CLAIMANT HUNTER VALLEY ESTATES PTY LTD (ACN 010 857 717) CROSS-RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	11 MAY 2006
WHERE MADE:	SYDNEY