WARREN -v- LAWTON [2014] WASC 59

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 59
Case No:	CIV:1372/2010	Heard:	14 NOVEMBER 2013
Coram:	LE MIERE J	Delivered:	5/03/14
No of pages:	15	Judgment Part:	1 of 1
Result:	Amendments to amended defence disallowed Leave to file and serve a minute of proposed amended defence and counterclaim granted
Category:	B
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Parties:	MARK DONALD WARREN JOSEPH FRANCIS LAWTON MOLLY ELIZABETH HALL REGISTRAR OF TITLES
Catchwords:	Practice and procedure Application to disallow amendments to defence and counterclaim Amendments withdraw admission No prejudice from delay in making amendments No leave to amend pleading into defective form Amendments which render pleading defective should be disallowed Amendments are defective Pleading of legal conclusion Material facts must be pleaded Implied terms inconsistent with written terms of sale contract Rectification plea embarrassing
Legislation:	Property Law Act 1969 (WA), s 126(2) Transfer of Land Act 1893 (WA), s 138B
Case References:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Water Corporation v Cardno BSD Pty Ltd [2009] WASCA 212

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : WARREN -v- LAWTON [2014] WASC 59 CORAM : LE MIERE J HEARD : 14 NOVEMBER 2013 DELIVERED : 5 MARCH 2014 FILE NO/S : CIV 1372 of 2010 MATTER : Claim for an order for the dismissal of 1st and 2nd named first defendant's application under Section 138B of the Transfer of Land Act 1893 for the removal of caveat BETWEEN : MARK DONALD WARREN

Plaintiff

AND

JOSEPH FRANCIS LAWTON

MOLLY ELIZABETH HALL

First Defendants

REGISTRAR OF TITLES

Second Defendant

Catchwords:

Practice and procedure - Application to disallow amendments to defence and counterclaim - Amendments withdraw admission - No prejudice from delay in making amendments

No leave to amend pleading into defective form - Amendments which render pleading defective should be disallowed - Amendments are defective - Pleading of legal conclusion - Material facts must be pleaded - Implied terms inconsistent with written terms of sale contract - Rectification plea embarrassing

Legislation:

Property Law Act 1969 (WA), s 126(2)

Transfer of Land Act 1893 (WA), s 138B

Result:

Amendments to amended defence disallowed

Leave to file and serve a minute of proposed amended defence and counterclaim granted

Category: B

Representation:

Counsel:

Plaintiff : Mr M J McPhee

First Defendants : Mr I A Morison

Second Defendant : No appearance

Solicitors:

Plaintiff : M J McPhee Barrister and Solicitor

First Defendants : McAuliffe Legal

Second Defendant : No appearance

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

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Water Corporation v Cardno BSD Pty Ltd [2009] WASCA 212

LE MIERE J

Application to disallow amendments to defence and counterclaim

1 The plaintiff has applied to disallow amendments to the first defendant's defence and counterclaim. The action arises out of dealings between the plaintiff and the defendants concerning land near Margaret River. In 1983 the plaintiff was the registered proprietor of the…

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 Warren v Lawton

Details

AGLC: Warren v Lawton [2014] WASC 59
Case: [2014] WASC 59
Decision Date: 5 MARCH 2014

CaseChat Overview and Summary

Warren v Lawton was a proceeding in the Supreme Court of Queensland where the defendant sought to amend his defence and counterclaim. The plaintiff, Warren, opposed the amendments and the court had to determine whether leave should be granted for the defendant to amend his pleadings. The legal issues centred on whether the amendments would prejudice the plaintiff, whether the delay in making the amendments was justified, and whether the proposed amendments rendered the pleadings defective. Additionally, the court had to consider whether the amendments should be allowed to rectify implied terms that conflicted with the written terms of the sale contract.

The court considered that the amendments sought to withdraw admissions that were previously made by the defendant, which would have prejudiced the plaintiff if allowed. The court also found that there was no justification for the delay in making the amendments, and that the proposed amendments would render the pleadings defective by pleading legal conclusions instead of material facts. Furthermore, the court held that the defendant's proposed amendments would create an embarrassing situation by seeking to rectify implied terms that were inconsistent with the written terms of the sale contract. The court concluded that the proposed amendments should be disallowed as they were defective and would prejudice the plaintiff.

In light of the above, the court disallowed the amendments to the defendant's defence and counterclaim. However, the court granted the defendant leave to file and serve a minute of the proposed amended defence and counterclaim, which would correct the defects in the pleadings. The court considered that this would be in the interests of justice and would avoid any further delay in the proceedings. The court's decision was guided by the principles of justice and fairness, and the need to ensure that the pleadings were in the proper form and did not prejudice either party.

Orders

Orders of the court

Amendments to amended defence disallowed

Leave to file and serve a minute of proposed amended defence and counterclaim granted

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

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