Wagner, David Roy and Wagner, Vicki Maree v Ryan, Michael Kenneth and Ryan, Mary Ursula and Dingjan, Anthony John and Dingjan, Sandra Lee
[1999] TASSC 11
•16 February 1999
[1999] TASSC 11
PARTIES: WAGNER, David Roy
WAGNER, Vicki Maree
v
RYAN, Michael Kenneth
RYAN, Mary Ursula
DINGJAN, Anthony John
DINGJAN, Sandra Lee
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 359/1992
DELIVERED: 16 February 1999
HEARING DATE/S: 3 February 1999
JUDGMENT OF: Crawford J
CATCHWORDS:
Procedure - Supreme Court procedure - Tasmania - Practice under rules of court - Amendments -Counterclaim - Amendment to plead new cause of action - Made after expiry of limitation period - Whether new cause of action.
Weldon v Neal (1887) 19 QBD 394; Renowden v McMullin (1970) 123 CLR 584; Kingston Earthworks Pty Ltd v Iles (1997) 6 Tas R 433; Towns v Que River Mining Pty Ltd A75/1995, applied.
Aust Dig Procedure [276]
REPRESENTATION:
Counsel:
Appellants/Defendants: P J Harris
Respondents/Plaintiffs: B H Crawford
Solicitors:
Appellants/Defendants: Jennings Elliott
Respondents/ Plaintiffs: Crawford & Crawford
Judgment category classification:
Judgment ID Number: [1999] TASSC 11
Number of pages: 9
Serial No 11/1999
File No 359/1992
DAVID ROY WAGNER and VICKI MAREE WAGNER v
MICHAEL KENNETH RYAN, MARY URSULA RYAN, ANTHONY JOHN DINGJAN and SANDRA LEE DINGJAN
REASONS FOR JUDGMENT CRAWFORD J
16 February 1999
The defendants have applied for leave to amend their defence and counterclaim.
By a writ filed on 6 October 1992 the plaintiffs sued the defendants for damages. In the annexed statement of claim the basis of the claim is as follows. The plaintiffs were contractors with Tasmanian Pulp and Forest Holdings Ltd (TPFH) under a written agreement dated 26 May 1992 (par1). By par2 of the statement of claim it is pleaded that under cl 4.1(c) of the agreement the plaintiffs were obliged to harvest wood from areas directed by TPFH and to supply that company with that wood according to a monthly quota of loads specified by it. The quota for the month of July 1992 was 125 loads (par3). Under oral contracts of employment the first and second defendants and the third and fourth defendants were employed by the plaintiffs to cart some of the wood to TPFH pursuant to the agreement, and under and by virtue of those oral contracts the defendants had a licence from the plaintiffs to travel over roads made by TPFH leading to and from the areas so directed by TPFH (par4). The first and second defendants were conducting business as partners in order to fulfil their obligations under their contract of employment with the plaintiffs (par5) and similarly, the third and fourth defendants were in partnership (par6).
By par7 of the statement of claim it is pleaded that it was an implied term of each of the contracts of employment that the respective defendants would not prevent or impede the due compliance by the plaintiffs with their obligations under their agreement with TPFH. By par8 it is alleged that the first and third defendants prevented or impeded the plaintiffs from fulfilling their obligations under their agreement with TPFH, in that by so parking their vehicles they obstructed the carriageway of a road leading to and from an area at Royal George being logged by the plaintiffs under that agreement in order to fulfil the plaintiffs' obligations referred to in par2. By par9 it is pleaded that the act [sic] referred to in par8 was unlawful in that (a) it was contrary to the obligations of the defendants referred to in par7 and (b) it was not the subject of any licence by the owner of the road or by any person having rights to grant the defendants a licence thereon.
By par10 of the statement of claim it is alleged that on 28 July 1992 the third defendant, in common purpose and with the agreement of the other defendants, prevented or impeded the plaintiffs from fulfilling their obligations under their agreement with TPFH, in that he wrongfully obstructed the carriageway of a public road at Mount Foster. That act of obstruction was unlawful in that it was contrary to the defendants' obligations referred to in par7 (par11).
By par12 of the statement of claim it is pleaded that on 30 July 1992 at Royal George the first defendant, in common purpose and with the agreement of the other defendants, threatened the first plaintiff that if the plaintiffs attempted to carry any loads of wood along the road at Royal George (which is referred to in par8 of the statement of claim), the first defendant would obstruct the carriageway of that road so as to prevent the plaintiffs from carrying loads of wood along it. The threatened act was an unlawful act in that (a) it was contrary to the obligations of the defendants referred to in par7 and (b) it was not the subject of any licence by the owner of the road or by any person having rights to grant the defendants a licence thereon (par13).
So far as concerns damages, the statement of claim, par16, pleads that the plaintiffs were prevented by the acts and threat of the defendants from fulfilling their obligations under the agreement with TPFH to supply the monthly quota for July 1992 of 125 loads, in that fourteen loads thereof were therefore not supplied by the plaintiffs to TPFH. Although $15,000 damages are claimed in the statement of claim, particulars of only $9,854.79 are provided.
The amended defence, in its current form, admits pars5 and 6 of the statement of claim and admits that on 28 July 1992 the defendants [sic] obstructed the carriageway of a road leading to an area being logged by the plaintiffs and the third defendant obstructed the carriageway of a public road at Mount Foster. In all other regards the facts pleaded in the statement of claim are either denied or not admitted.
I will deal with the counterclaim in due course, but before doing so will consider the amendments which the defendants applied for leave to make to the defence. With reference to the proposed further amended defence which was before me for consideration, leave will be granted to the defendants to make the proposed amendments to be found in pars1 and 4 and pars8 to 18. They were not opposed. The following proposed amendments were opposed:
"5In or around the month of March 1983 the plaintiffs and the third and fourth named defendants entered into a contract for services under which the third and fourth named defendants were to cart for reward along with others an equal share of all pulpwood and sawlogs harvested by the plaintiffs.
6In or around the month of September 1989 the plaintiffs and the third and fourth named defendants varied the said contract for services by agreeing that the third and fourth named defendants' share of pulpwood and sawlogs to be carted would be one-quarter of all that harvested by the plaintiffs.
7In or around the month of September 1989 the plaintiffs and the first and second named defendants entered into a contract for services under which the first and second named defendants were to cart for reward a one-quarter share of all pulpwood and sawlogs harvested by the plaintiffs."
There is nothing in those paragraphs which raise any fact or matter in defence of the plaintiffs' claims against the defendants. Counsel for the defendants conceded that. Accordingly leave will not be given with respect to those paragraphs.
The existing counterclaim is in the following terms:
"16By an agreement the terms of which are oral and to be implied the Plaintiffs were obliged to provide the first and second named Defendants with a quarter share of the quota of saw logs logged at Mount Foster for the first and second named Defendants to transport from Mount foster [sic] to various saw mills in Tasmania.
17In breach of their obligations under that agreement the Plaintiffs failed to provide the first and second named Defendants with any saw logs by reason of which the first and second named Defendants have suffered loss and damage.
PARTICULARS
(To be supplied)
18By an agreement the terms of which are oral and implied the Plaintiffs were obliged to provide the third and fourth named Defendants with a quarter share of the quota of saw logs logged at Mount Foster or any other area for the third and fourth Defendants to transport to various saw mills in Tasmania.
19In breach of their obligation under that agreement the Plaintiffs failed to provide the third and fourth named Defendants with any saw logs by reason of which the third and fourth named Defendants have suffered loss and damage and further and in the alternative it was a term of the transport contract pleaded in clause 16 hereof that the said agreement was terminable only upon reasonable notice and the plaintiffs failed to give the defendants any notice or any reasonable notice of termination of the said agreement where by [sic]the defendants have suffered loss, damage and have been put to expense.
PARTICULARS FROM WHICH THE TERM IS
TO BE IMPLIED
(a)There was no express term agreed between the parties as to the grounds upon which the agreement might be terminated and/or the period of notice of termination to be given to the defendants and/or the payment to be made if no such notice was given;
(b)The term was reasonable and equitable;
(c)The term was necessary to give business efficacy to the agreement;
(d)The term was so obvious that it went without saying;
(e)The term was capable of clear expression as the term does not contradict any other term of the said agreement."
There then follow particulars of the damages claimed by the first and second defendants against the plaintiffs and of the damages claimed by the third and fourth defendants against the plaintiffs.
I make some comments about the counterclaim. Paragraphs 16 and 17 raise a counterclaim by the first and second defendants only. Paragraph 16 pleads an agreement under which the plaintiffs were obliged to provide the first and second defendants with a quarter share of saw logs logged at Mount Foster for the first and second defendants to transport from Mount Foster to various saw mills in Tasmania. Paragraph 17 pleads a breach by the plaintiffs of that agreement by failing to provide the first and second defendants with any saw logs. I note that par17 is plainly defective, for a failure to provide any saw logs would not be a breach. To amount to a breach the plaintiffs would have had to have failed to provide the first and second defendants with a quarter share of saw logs logged at Mount Foster for the first and second defendant to transport from Mount Foster to various saw mills. The particulars of the damages claimed by the first and second defendants are also defective. They claim a monthly sum of $7,763.52 from September 1991 and continuing based on estimated monthly receipts less expenses (presumably estimated). The estimated monthly receipts are particularised as "average monthly receipts for pulp log cartage $12,281.29" and "monthly receipts expected from sawlog cartage $1,503.68", a total of $13,784.97 before a deduction of $6,021.45 for expenses. It is apparent that most of the damages claimed are calculated upon the basis of monthly receipts for pulp log cartage whereas there is nothing pleaded in the counterclaim to suggest that the plaintiffs had any obligation to the first and second defendants with regard to pulp logs. The agreement pleaded in par16 concerns only an obligation to provide saw logs. It must follow that most of the damages claimed by the first and second defendants in the counterclaim, as it presently stands, will not be recoverable.
The pleading of pars18 and 19, and the particulars appearing immediately after par19, create even greater difficulties. Paragraph 18 pleads an agreement under which the plaintiffs were obliged to provide the third and fourth defendants with a quarter share of saw logs logged at Mount Foster or any other area for the third and fourth defendants to transport to various saw mills in Tasmania. The first half of par19 pleads a breach by the plaintiffs of that agreement by failing to provide the third and fourth defendants with any saw logs. As with par17, the pleading is defective, for a failure to provide any saw logs would not be a breach. To amount to a breach the plaintiffs would have had to have failed to provide the third and fourth defendants with a quarter share of saw logs logged at any place for the third and fourth defendants to transport to various saw mills in Tasmania. The particulars of the damages claimed by the third and fourth defendants suffer from the same problem to which I referred with regard to the particulars of the damages claimed by the first and second defendants. The third and fourth defendants claim a continuing monthly loss of $7,187 (the particulars do not identify the commencing month) and most of the monthly loss which is claimed arises out of estimated receipts from carting pulp logs, with respect to which the plaintiffs owed no duty to the third and fourth defendants so far as the pleaded counterclaim is concerned.
The second half of par19 is very difficult to understand and is confusing to say the least. What it states is that "further and in the alternative" to the pleading of the breach of the agreement between the plaintiffs and the third and fourth defendants, the agreement between the plaintiffs and the first and second defendants, which is pleaded in par16 and which obliged the plaintiffs to provide the first and second defendants with a quarter share of the saw logs referred to, was terminable only upon reasonable notice and the plaintiffs failed to give the defendants (all four of them?) notice or reasonable notice of termination. It is impossible to accept that what is pleaded in the second half of par19 could be "further and in the alternative" to what is pleaded in the first half, for the first half deals with contractual obligations between the plaintiffs and the third and fourth defendants and the second half concerns contractual obligations between the plaintiffs and the first and second defendants. A further problem with the second half of par19 is that it is not pleaded that the agreement between the plaintiffs and the first and second defendants was terminated by the plaintiffs, and strictly nothing flows from it. However, that is technical, for a failure to give notice of termination is pleaded.
I next deal with the proposed amendments to the counterclaim. The amendments are wholesale, for the defendants seek to replace the existing counterclaim with an entirely new edition. It is convenient to first consider the proposed amendments of the first and second defendants, the paragraphs of which I will set out.
"20The first and second named defendants repeat paragraphs 7 and 8 of their defence."
What are referred to as pars7 and 8 of the defence are in these terms:
"7In or around the month of September 1989 the plaintiffs and the first and second named defendants entered into a contract for services under which the first and second named defendants were to cart for reward a one-quarter share of all pulpwood and sawlogs harvested by the plaintiffs.
8The first and second named defendants admit that they were at all material times conducting business as partners but otherwise deny paragraph 5 of the statement of claim."
I said earlier that I will not permit par7 to appear in the defence. Accordingly, if the amendments are to be permitted, the contents of par7 should be set out in the counterclaim itself. As par8 of the defence merely admits and denies facts, it is unnecessary to repeat it in the counterclaim.
The proposed counterclaim of the first and second defendants continues:
"21The defendants say that it was an implied term of their contracts for services with the plaintiffs that the plaintiffs would give them reasonable notice of their intention to terminate those contracts.
22The defendants say that in the circumstances of the contracts a reasonable period of notice of intention to terminate was two years.
…
25Wrongfully and in breach of the contract for services between the plaintiffs and the first and second named defendants the plaintiffs failed or refused to allocate a one-quarter share of all pulpwood and sawlogs harvested by them to the first and second named defendants to cart.
Particulars
The defendants during the period of October 1991 to January 1993 failed to obtain a one-quarter share of all pulpwood harvested by the plaintiff [sic] from coups MF6A, 21A, 46A, 47A, 49A and 49AA was 1,608.275 tonnes and a one-quarter share of all sawlogs harvested from coup Nos MS6A, 21A, 46A, 77A, 79A, 47A, 49A and 49AA was 1,802.9 tonnes (for the period October 1991 to January 1992 the plaintiffs harvested 6433.1 cubic metres of sawlogs).
26As a result of the plaintiffs said breach of contract the first and second named defendants have suffered loss and damage.
Particulars
During the period October 1991 to January 1993 a one-quarter share of all pulpwood harvested by the plaintiff from coups MF6A, 21A, 46A, 47A, 49A and 49AA was 1,608.275 tonnes and a one-quarter share of all sawlogs harvested from coup Nos MS6A, 21A, 46A, 77A, 79A, 47A, 49A and 49AA was 1,802.9 tonnes (for the period October 1991 to January 1992 the plaintiffs harvested 6433.1 cubic metres of sawlogs).
27Further or in the alternative, in breach of the contracts for services between the plaintiffs and the defendants the plaintiffs on 28 July 1992 terminated the contracts without giving the defendants reasonable notice of their intention to do so."
(It was apparent at the hearing that there was a problem with par27 as drafted and following a further application to amend it I have redrafted it into a form which I believe would have been acceptable to the defendants' counsel.)
The particulars to par25 are ungrammatical and difficult to follow. Possibly what is intended to be claimed is that the first and second defendants' one quarter share of all pulpwood harvested by the plaintiffs in the sixteen month period between October 1991 and January 1993 was 1,608.275 tonnes and of all saw logs harvested by the plaintiffs in the same period was 1,802.9 tonnes. The words in parenthesis are puzzling. It is impossible to understand why it has been mentioned that in the four month period between October 1991 and January 1992 the plaintiffs harvested 6,433.1 cubic metres of saw logs. What relationship that bears to the quantity expressed as tonnes for a sixteen month period cannot be discerned. It is also impossible to understand why the same words appear in parenthesis in the particulars to par26.
Particulars of the claim for damages based on the breach by termination, which is pleaded in par27, are set out in the proposed pleading. The first and second defendants have claimed gross losses of $1,825 per month for twenty-four months with respect to saw logs (a total of $43,800) and $11,261 per month with respect to pulp logs (a total of $274,264), a total gross loss claimed of $314,064. After giving credit for estimated expenses and actual earnings, the total net loss claimed by the first and second defendants is $117,161.18. Presumably the twenty-four month period on which the claim is based commences on 28 July 1992 and overlaps with the period October 1991 to January 1993 with respect to which damages are claimed under par26. However, the amount of damages claimed under par26 is not stated, and it follows from all I have said that what in total is claimed by the first and second defendants for both the breach pleaded in par25 and the breach pleaded in par27 is a mystery.
Most of the problems I have raised concerning the amendments sought to be made to the counterclaim on behalf of the first and second defendants were not raised at the hearing of the application for leave to amend. The plaintiffs' opposition to the application was based on much more weighty stuff, concerning limitation periods, and it is to that aspect I now turn. The Rules of the Supreme Court 1965, O31, r1, confers a very wide power of amendment. It authorises a judge to allow an amendment to a pleading "in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties". As a general rule, leave should be given for an amendment to a pleading providing that it can be done without injustice to the other side. However, if an amendment is allowed which enables a party to set up a cause of action which, but for the leave given, would be barred by a statute of limitations, it would as a general rule result in an injustice to the other party by taking away that party's right to rely on the statute. Weldon v Neal (1887) 19 QBD 394; Renowden v McMullin (1970) 123 CLR 584. In such circumstances it is normally the case that leave to make such an amendment will not be permitted. However, in this connection I note the concession by counsel for the plaintiffs, based on what was said in Kingston Earthworks Pty Ltd v Iles (1997) 6 Tas R 433 at 441, that the relevant time for determining whether a new cause of action, sought to be raised by a proposed amendment, is statute barred is the date on which the application to amend was filed, which in this case was 7 August 1998.
Two main questions therefore arise for determination, viz, are there any new causes of action which are sought to be raised by the proposed amendments to the counterclaim and, if so, were those causes of action statute barred on 7 August 1998. The limitation period in the case of a claim upon a simple contract is one of six years from the date upon which the cause of action accrued. Limitation Act 1974, s4(1)(a). The statutory period begins to run at the moment of the accrual of a cause of action based on a breach of a simple contract, that is to say when the alleged breach of contract was committed. The fact that actual damage may not have been suffered until some date later than the breach is immaterial. It follows that if any causes of action are to be pleaded for the first time by the proposed amendments to the counterclaim, the breaches of contract which constitute the causes of action must have been committed no earlier than 7 August 1992.
The first cause of action to be pleaded in the proposed amended counterclaim by the first and second defendants is to be found in par25. It is based on the contract sought to be pleaded in par7 of the defence, that is to say the contract "under which the first and second named defendants were to cart for reward a one-quarter share of all pulpwood and sawlogs harvested by the plaintiffs". The breach of that contract, sought to be pleaded by par25, is that "the plaintiffs failed or refused to allocate a one-quarter share of all pulpwood and sawlogs harvested by them to the first and second named defendants to cart".
Counsel for the plaintiffs submitted that the cause of action sought to be pleaded is a new one, essentially different than any cause of action pleaded in the existing counterclaim. The differences he pointed to included the following. According to the existing counterclaim, the contract provided for saw logs harvested by the plaintiffs to be transported by the first and second defendants to saw mills. In the proposed counterclaim, the contract provides for all pulpwood harvested by the plaintiffs as well as saw logs, to be carted by the first and second defendants, such cartage not being restricted to cartage to saw mills. In my opinion what it is proposed to plead is essentially different and raises a new cause of action. In considering whether a new cause of action would be involved, I have had regard to the matters of principle which were discussed by Cox CJ in Towns v Que River Mining Pty Ltd A75/1995 at 3 - 5. I also note that to allow the amendments would permit the first and second defendants substantially greater damages than would otherwise have been the case. I propose to grant leave to the first and second defendants to make an amendment of this nature only if the breaches of contract concerning pulpwood are restricted to those occurring after 7 August 1992. Leave will not be granted with request to breaches which occurred before then.
Another difference is that the contract between the plaintiffs and the first and second defendants which is pleaded in the existing counterclaim, gave to the first and second defendants rights to cart from Mount Foster to saw mills, saw logs which were logged at Mount Foster. The proposed amendments do not limit the timber or the commencement point of the cartage to Mount Foster. The difference may well be one of degree only, for counsel for the first and second defendants informed me that his clients claimed only with respect to logs from coups of timber at Mount Foster and an area which is nearby and off the same road. If that is so I might not refuse leave on the basis of the difference, but it may be necessary for there to be sworn evidence tendered on behalf of the first and second defendants concerning the areas which are involved, before I can finally determine the point. The first and second defendants should be limited to claiming with respect to saw logs from the general area of Mount Foster so far as concerns breaches of contract before 7 August 1992.
Counsel for the first and second defendants pointed to the fact that particulars of damages which are pleaded in the existing counterclaim, refer to both pulp logs and saw logs, but that does not persuade me to regard the counterclaim as having pleaded causes of action different than might have been thought to be the case if the particulars were not so worded.
The other cause of action to be claimed by the first and second defendants in the proposed amended counterclaim arises out of the alleged termination of the contract between the plaintiffs and the first and second defendants on 28 July 1992. Leave to amend in that regard will be granted. Paragraph 19 of the existing counterclaim pleads that it was a term of the agreement that it could be terminated only upon reasonable notice and it pleads a breach of that term by the plaintiffs failing to give the defendants reasonable notice, or indeed any notice of termination. It is arguable that the pleading is technically deficient in that it does not specifically plead the termination, but in my view the deficiency is not material and the cause of action which is sought to be pleaded in the proposed amended counterclaim is essentially the same. By the proposed par22 the first and second defendants will claim that a reasonable period of notice of intention to terminate was two years, but I do not regard that as material. What would have been a reasonable period of time could have been ascertained by the plaintiffs by the delivery of a request for particulars.
Finally I deal with the amendments which are proposed to be made to the counterclaim on behalf of the third and fourth defendants. They also seek to replace the existing counterclaim with an entirely new edition, the relevant paragraphs of which I will set out.
"19The third and fourth named defendants repeat paragraphs 5, 6 and 9 of their defence."
What are referred to as pars5, 6 and 9 of the defence are in these terms:
"5In or around the month of March 1983 the plaintiffs and the third and fourth named defendants entered into a contract for services under which the third and fourth named defendants were to cart for reward along with others an equal share of all pulpwood and sawlogs harvested by the plaintiffs.
6In or around the month of September 1989 the plaintiffs and the third and fourth named defendants varied the said contract for services by agreeing that the third and fourth named defendants' share of pulpwood and sawlogs to be carted would be one-quarter of all that harvested by the plaintiffs.
…
9The third and fourth named defendants admit that they were at all material times conducting business as partners but otherwise deny paragraph 6 of the statement of claim."
Paragraph 9 merely admits a fact, and it is unnecessary to repeat it in the counterclaim. I have already said that I would not permit the content of pars5 and 6 to be pleaded into the defence. If they are to be pleaded they should appear in the counterclaim itself. I will return their substance shortly. The proposed counterclaim of the third and fourth defendants continues:
"21The defendants say that it was an implied term of their contracts for services with the plaintiffs that the plaintiffs would give them reasonable notice of their intention to terminate those contracts.
22The defendants say that in the circumstances of the contracts a reasonable period of notice of intention to terminate was two years.
23Wrongfully and in breach of the contract for services between the plaintiffs and the third and fourth named defendants the plaintiffs failed or refused to allocate a one-quarter share of all pulpwood and sawlogs harvested by them to the third and fourth named defendants to cart.
Particulars
The amount not allocated during the period October 1991 to January 1993 was a one-quarter share of all pulpwood harvested by the plaintiff [sic] from coups MF6A, 21A, 46A, 47A, 49A and 49AA was 1,608.275 tonnes and a one-quarter share of all sawlogs harvested from coup Nos MS6A, 21A, 46A, 77A, 79A, 47A, 49A and 49AA was 1,802.9 tonnes (for the period October 1991 to January 1992 the plaintiffs harvested 6433.1 cubic metres of sawlogs).
The defendants are unable to provide any further particulars until after full discovery, inspection of documents and interrogatories have been served and answered.
24As a result of the plaintiffs said breach of contract the third and fourth named defendants have suffered loss and damage.
Particulars
The defendants are unable to give the particulars sought until full discovery has been made, documents inspected, interrogatories served and answered.
…
27Further or in the alternative, in breach of the contracts for services between the plaintiffs and the defendants the plaintiffs on 28 July 1992 terminated the contracts without giving the defendants reasonable notice of their intention to do so."
(I explained earlier that I have redrafted par27).
I make the same comment with regard to the particulars under par23 as I made earlier with regard to the particulars under par25. The particulars are ungrammatical and difficult to follow. Possibly what is intended to be claimed is that the third and fourth defendants' one quarter share of all pulpwood by the plaintiffs in the sixteen month period between October 1991 and January 1993 was 1,608.275 tonnes and of all saw logs harvested by the plaintiffs in the same period was 1,802.9 tonnes. As I also commented earlier, the words in parenthesis are puzzling. It is impossible to understand why it has been mentioned that in the four month period between October 1991 and January 1992 the plaintiffs harvested 6,433.1 cubic metres of saw logs. What relationship that bears to the quantity expressed as tonnes for a sixteen month period cannot be discerned.
Particulars of the claim for damages by the third and fourth defendants based on the breach by termination, which is pleaded in par27, are set out in the proposed pleading. Because of the view I take of the claim by the third and fourth defendants with respect to termination, it is unnecessary to consider the particulars further.
For the same reasons which I expressed when dealing with the application of the first and second defendants, leave will only be granted to the third and fourth defendants to amend with respect to pulpwood so as to include a claim based on breaches of contract since 7 August 1992. No claim with respect to pulpwood is made in the existing counterclaim. The problems concerning the area of Mount Foster does not however arise, as it did with the proposed counterclaim of the first and second defendants.
Leave will not be given to the third and fourth defendants to amend so as to include a claim for breach of contract based on the termination of the contract between the plaintiffs and the third and fourth defendants. Such a cause of action is not pleaded by the third and fourth defendants in their existing counterclaim. The proposed claim is based on a termination which is alleged to have occurred over six years prior to the date of the making of the application for leave to amend, and it would therefore be unjust to grant the application.
I propose to publish these reasons and then to adjourn the further hearing of the application so as to enable the parties to consider what is now required. In particular the defendants will need to reconsider the amendments they seek which I will allow. They will certainly need to attend to more drafting. The first and second defendants may also consider it desirable to put before me affidavit evidence concerning the area from which the logs, with respect to which they claim, were harvested.
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