Williams v Grainger

[2001] WASC 53

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WILLIAMS & ANOR -v- GRAINGER & ORS [2001] WASC 53

CORAM:   MASTER BREDMEYER

HEARD:   1 FEBRUARY 2001

DELIVERED          :   7 MARCH 2001

FILE NO/S:   CIV 1171 of 2000

BETWEEN:   RUTH EILEEN WILLIAMS

First Plaintiff

MARK CURTIS WILLIAMS
Second Plaintiff

AND

GEOFFREY ORMOND GRAINGER
First Defendant

JOAN HARRINGTON GRAINGER
Second Defendant

WESFARMERS DALGETY REAL ESTATE (WA) PTY LTD (ACN 009 238 993)
WESFARMERS DALGETY LTD (ACN 008 743 217)
Third Defendants

Catchwords:

Parties - Application to join a plaintiff - Reasons for costs orders

Legislation:

Nil

Result:

Application allowed subject to conditions

Representation:

Counsel:

First Plaintiff                :     Mr M A Blundell

Second Plaintiff            :     Mr M A Blundell

First Defendant             :     Mr M G Clay

Second Defendant         :     Mr M G Clay

Third Defendants          :     Mr A S Stavrianou

Solicitors:

First Plaintiff                :     Solomon Brothers

Second Plaintiff            :     Solomon Brothers

First Defendant             :     Martin De Haas

Second Defendant         :     Martin De Haas

Third Defendants          :     Julian Lentzner

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

Williams & Anor v Grainger & Ors [2001] WASC 10

Case(s) also cited:

Nil

1. MASTER BREDMEYER:  I published reasons in this action, Williams & Anor v Grainger & Ors [2001] WASC 10, on 19 January 2001. I then heard argument on the orders which should flow from my reasons. I now publish those orders in a separate minute. In hearing that argument Mr Clay, for the first and second defendants, argued that my reasons had failed to deal with the plaintiffs' application for the joinder of Gale Williams. Counsel for the plaintiffs argued that I had dealt with it at [6] and [49] of my reasons. I undertook to reconsider the matter, which I now do.

2. On 22 August 2000 the plaintiffs applied for entry of this action into the Expedited List to join Gale Curtis Williams as the third plaintiff and for leave to further amend the statement of claim and the writ of summons in terms of minutes filed herewith.  They filed a detailed affidavit of Mark Curtis Williams, sworn 18 August 2000 in support.  That application was heard by Templeman J on 22 August 2000 and he dismissed the application.  It is apparent from his reasons that he only considered the question of entry into the Expedited List.  I interpret his order as only relating to that.  I consider that the rest of the chamber summons is alive.  A further affidavit of Mark Curtis Williams, in opposition to an application for summary judgment and in support of the application for joinder of additional plaintiff, was sworn on 24 October 2000.  With the initial application was a minute of reamended writ of summons dated 18 August 2000 naming Gale Curtis Williams as the third plaintiff.  That minute was further amended in a minute of reamended summons of 6 November 2000.  The indorsement of claim on that minute reads as follows:

   "The plaintiff's plaintiffs' claim is as trustee for the Brown Trust (with respect to the first plaintiff) and as trustee for the Mallee Trust (with respect to the second plaintiff) and in his personal capacity (with respect to the third plaintiff) for the following relief arising out of representation made prior to the execution of an agreement made between the second plaintiff and the first defendant and the second defendant made in May 1998 whereby the first defendant and the second defendant agreed to sell and Mark Williams agreed to purchase the land known as Kent Location 1658 ('the Agreement') and the execution of two agreements to lease made between the first plaintiff and the first defendant and the second defendant in May 1998 whereby the first defendant and the second defendant agreed to lease to the first plaintiff the land known as Kent Location 1658 and Kent Location 1659;

   A.A declaration that the Agreement has been rescinded;

   B.Refund of $5,000.00 deposit paid under the Agreement;

   C.Damages pursuant to section 82 of the Trade Practices Act 1974;

   D.Further or alternatively, damages pursuant to section 79 of the Fair Trading Act 1987;

   E.Further or alternatively, damages at common law for deceit;

   F.Compensation pursuant to s 87(1A) of the TPA, further or alternatively s 77 of the FTA.

   F.G.  Interest on all amounts recovered under prayers C, D, and E and F at the rate of 6.5% per annum from 20 May 1998 until judgment pursuant to section 32 of the Supreme Court Act 1935;

   G.H  Costs."

3. The basis for the application for joinder is as follows.  It is pleaded in the statement of claim that certain misrepresentations were made by the defendants to Ruth and Mark Williams via their agent Gale Williams.  Gale is the husband of Ruth and the father of Mark.  He was present when the representations were made and the documents, a contract of sale for land and two leases, were signed.  The representations were made by the first defendant, who was the owner (with his wife, the second defendant) of the properties being sold and leased and was also an employee and agent for the third defendants.  The third defendants loaned moneys to Ruth to farm the properties.  The moneys were in two forms:  a seasonal facility and a term loan.  The third defendants, whom I will refer to as "Wesfarmers Dalgety", required numerous securities to be signed and they required a guarantee and indemnity signed by Gale, secured by a mortgage over the land in Crown Grant Volume 1498, Folio 621.  That property is in the joint names of Ruth and Gale Williams and is their main farm at Lake Magenta, Newdegate.  The mortgage was signed by Gale and Ruth Williams on 21 October 1998.  The deed of guarantee and indemnity was signed by Gale on 10 May 1999.  From time to time the sums secured by these documents were varied by consent.  On 17 August 2000 the moneys were called up under the mortgage and the guarantee and it was the financial distress which that caused which prompted the application for entry of the action in the Expedited List.

4. I consider that Gale can plead a proper cause of action and should be joined in this action to avoid a multiplicity of suits. In the current statement of claim it is pleaded that the representations were made to him, admittedly as an agent. Then, in par 14, it is pleaded that, in reliance on and induced by those representations, Mark and Ruth did certain things. It needs to be pleaded there that Gale entered into the mortgage and guarantee in reliance on the representatives. That is a bit tricky because certainly Mark, and probably Gale, found out that the representations were untrue on or before 17 August 1998 when Mark rescinded the contract of sale. So how can it be said that Gale entered into the mortgage of 21 October 1998 and the guarantee of 10 May 1999 in reliance on the representations? He may have been bound to because he signed a letter of offer from Wesfarmers Dalgety on 28 July 1998 (referred to in the mortgage as a Facility Agreement) agreeing to give the guarantee and the mortgage. He needs also to plead that the guarantee and mortgage have been called up and to seek a declaration that they be declared void because of the representations. I consider it would avoid multiplicity of suits if I permit Gale to be joined in this action as third plaintiff, subject to certain conditions. As foreshadowed in [49] of my earlier reasons, the statement of claim needs to be amended to pleaded a proper cause of action for him. I consider that the minute of reamended writ of summons needs also to be further amended. It is good in that it mentions that he is appearing as his personal capacity but it needs to mention the guarantee and mortgage which he signed as a result of the representations and it needs to plead some relief against the enforcement of those securities, for example, that they be declared void under s 87(2)(a) of the Trade Practices Act.

5. A further condition is that Gale should provide a written consent to be joined as plaintiff within 21 days.  At par 45 of Mark's affidavit of 18 August 2000, already mentioned, he states:

   "Gale Williams has informed Mr Blundell that Gale Williams consents to being joined as third plaintiff to these proceedings."

   That is hearsay.  I understand it was done in that way because it was an urgent application to get the action into the Expedited List and Gale Williams lives on a farm some five hours drive from Perth.  By O 18 r 6(2) the would be plaintiff needs to signify his consent in writing "or in such other manner as may be authorised".  My orders permit him to provide a written consent within 21 days.

6. On costs, I appreciate that the application could not have been made until August when the securities given by Gale were called up by Wesfarmers Dalgety.  At the same time there were considerable problems with the application as indicated by the fact that I have allowed it only subject to the conditions, two of which were significant.  I consider the plaintiffs should pay the defendants' costs of this part of the application.

7. I give some reasons for the costs orders given in my minute of orders which accompanies these reasons.

8. On the plaintiffs' chamber summons of 18 August 2000 apart from my costs order on the application for joinder I have given no order as to costs because I consider the exercise of considering the adequacy of the minute minute of reamended statement, and of the defendants' strike‑out applications, was really the one exercise.

9. On the first and second defendants' application to strike out parts of the statement of claim and O 16 judgment against the second plaintiff Mark, the strike‑out application succeeded in part; the O 16 application failed.  This suggests an apportionment of costs would be appropriate.  Of the paragraphs struck out many were minor.  Not every defence counsel would have challenged them.  The striking out of particulars B and D of par 35 without leave to replead, was significant.  They are heads of loss and damage and their striking out will shorten the scope of the trial.  Not so much time was spent on the O 16 application.  It was not necessary to bring this application.  Mr Clay argued that in par 35.9(b) of the pleading Mark is claiming loss and damages, yet no recognisable cause of action is pleaded for damages for Mark.  In the context where no cause of action is pleaded in the body of the pleading for damages for Mark (as distinct from the refund of $5,000 deposit - which is pleaded), and no particulars of loss suffered by Mark were given, the general phrase at the end of a long pleading that "Mark Williams has suffered loss and damages" means very little.  It should not have set off alarm bells and produced an O 16 application.  That is an over use of an interlocutory procedure.