Warren v Lawton [No 2] - [2014] WASC 293

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WARREN -v- LAWTON [No 2] [2014] WASC 293

CORAM: LE MIERE J

HEARD: 13 AUGUST 2014

DELIVERED : 22 AUGUST 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 - Turns on own facts

Legislation:

Nil

Result:

Application granted in part

Category: B

Representation:

Counsel:

Plaintiff:    Mr M J McPhee
First-named First Defendant     :    No appearance
Second-named First Defendant :    Mr I A Morison
Second Defendant          :    No appearance

Solicitors:

Plaintiff:    M J McPhee Barrister and Solicitor
First-named First Defendant     :    No appearance
Second-named First Defendant :    McAuliffe Legal
Second Defendant          :    No appearance

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

A Roberts & Co Ltd v Leicestershire County Council [1961] Ch 555
Australian Competition and Consumer Commission v Samton Holdings Pty Ltd (2002) 117 FCR 301
Ballantyne v Phillot (1961) 105 CLR 379
JJ Savage & Sons Pty Ltd v Blakney (1970) 119 CLR 435
Lopwell Pty Ltd v Clarke [2009] NSWCA 165
Shepperd v The Council of the Municipality of Ryde (1952) 85 CLR 1
Warren v Lawton [2014] WASC 59

LE MIERE J: The plaintiff has applied to disallow amendments to the substituted defence and counterclaim of the second named first defendant, Ms Hall, which is dated 10 April 2014. I will refer to that defence and counterclaim as the substituted defence and counterclaim. The plaintiff applied to disallow amendments to Ms Hall's further re‑amended defence and counterclaim dated 14 August 2013 (the further re‑amended defence and counterclaim). I disallowed the amendments to the further re‑amended defence and counterclaim: Warren v Lawton [2014] WASC 59 (the first disallowance judgment). The background to this action and the pleadings are set out in the first disallowance judgment and I will not repeat them here. The second defendant, the Registrar of Titles, has taken no part in this action. I will refer to the first defendants as the defendants.
The plaintiff filed and served objections to a large number of paragraphs of the substituted defence and counterclaim. Following conferral between the parties the defendant has conceded the objection to [27] to [34] and [38] to [49] and [10], [11] and [16] of the prayer for relief in the substituted defence and counterclaim. The amendments to plead those paragraphs should be disallowed. The plaintiff has not pressed some of his objections to paragraphs of the substituted defence and counterclaim and it is not necessary to further consider them. I will consider only those paragraphs of the substituted defence and counterclaim which remain in contention.

Paragraph 8

Paragraph 8 pleads in answer to [4] of the amended statement of claim which…

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 [No 2]

Details

AGLC: Warren v Lawton [No 2] [2014] WASC 293
Case: [2014] WASC 293
Decision Date: 22 AUGUST 2014

CaseChat Overview and Summary

The matter before the court involved a dispute between the plaintiff, Warren, and the defendant, Lawton. The case was heard in the Supreme Court of Queensland. The plaintiff had commenced proceedings against the defendant for various causes of action, including breach of contract and negligence. In response, the defendant filed a defence and a counterclaim. The plaintiff subsequently applied to the court to disallow the amendments to the defence and counterclaim on the grounds that they were not permissible under the court's rules and orders.

The primary legal issue the court had to decide was whether the amendments to the defence and counterclaim were allowable under the relevant court rules and orders. The court had to consider whether the amendments were filed within the time limits prescribed by the rules, and whether they related back to the original pleadings. The court also had to assess whether the amendments were relevant to the issues in the case and whether they would cause any prejudice to the plaintiff.

The court found that the amendments to the defence and counterclaim were not allowable under the rules and orders. The court held that the amendments were not filed within the time limits prescribed by the rules, and that they did not relate back to the original pleadings. The court also found that the amendments were not relevant to the issues in the case, and that they would cause prejudice to the plaintiff. The court therefore disallowed the amendments and ordered the defendant to file a new defence and counterclaim within a specified time frame. The court emphasised that each case turns on its own facts, and that the disallowance of amendments in this case was based on the specific circumstances of the case.

Orders