Williamson v Beere May & Meyer (A Firm) - [2011] WASC 105

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WILLIAMSON -v- BEERE MAY & MEYER (A FIRM) [2011] WASC 105

CORAM: KENNETH MARTIN J

HEARD: 30 MARCH 2011

DELIVERED : 21 APRIL 2011

FILE NO/S: CIV 2309 of 2005

BETWEEN: JANINE MARGARET WILLIAMSON
BRET ANTHONY BAKER
LYNETTE AUDREY BAKER
GARRY NEVILLE MORRIS
PETA DENISE MORRIS
BRIAN NEVILLE MORRIS
AILEEN MARGARET MORRIS
Plaintiffs
AND
BEERE MAY & MEYER (A FIRM)
Defendant

Catchwords:

Proposed amendment to join party - Trustee of Unit Trust - Limitation of actions - Equitable claims - Need for special or exceptional circumstances to allow beneficiary to pursue trustees' cause of action

Legislation:

Nil

Result:

Leave refused

Category: B

Representation:

Counsel:

Plaintiffs: Mr MG Pendlebury
Defendant: Mr SF Popperwell

Solicitors:

Plaintiffs: CS Legal
Defendant: Pynt & Partners

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

Darlington Building Society & Abbey National PLC v O'Rourke James Scourfield & McCarthy [1998] EWCA Civ 1664 (delivered 3 November 1998)
Fried v National Australia Bank (2001) 111 FCR 322
Golski v Kirk (1987) 14 FCR 143
Hewitt v Henderson [2006] WASCA 233
Joseph Hayim Hayim v Citibank NA [1987] AC 730
Marshall v London Passenger Transport Board [1936] 3 All ER 83
Mercedes Holdings Pty Ltd v Waters [No 2] (2010) 186 FCR 450
Patterson v Richards [1963] VR 179
Re Dawson (dec'd) (1966) 84 WN (Part 1) NSW 399
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514

KENNETH MARTIN J:

Nature of application

By a chambers summons filed 4 November 2010, the plaintiffs, pursuant to O 18 r 6, seek orders that:
(1)Makana Pty Ltd, as trustee of the Morbak Unit Trust, be added as a plaintiff herein; and
(2)the writ of summons and all subsequent proceedings be amended by adding the name of Makana Pty Ltd, as trustee of the Morbak Unit Trust, as a plaintiff.
Essentially the application is for leave to re‑amend the plaintiffs' amended writ by the addition of Makana Pty Ltd as second plaintiff under a minute of proposed re‑amended writ of summons which was handed to the court during argument.
The application was accompanied by a revised minute of proposed amended statement of claim which was also handed to the court at the same time on the basis that leave to amend the statement of claim in those terms was sought.
It is apparent from the respective minutes that the situation is somewhat unusual, in that the proposed additional plaintiff (Makana) will not pursue a remedy in its own right. However, proposed amendments seen under par 40 of the proposed amended statement of claim provide new particulars in respect of 'Makana's loss and damage'. Makana's loss and damage is particularised under sub‑pars 40(a) through (h) inclusive. It is apparent that these losses and damages of Makana are sought to be pursued by the existing plaintiffs (or as they would now seek to characterise themselves, the first plaintiffs). Makana as proposed second plaintiff simply consents to the existing plaintiffs claiming Makana's loss…

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: [2011] WASC 105
Decision Date: 21 APRIL 2011

CaseChat Overview and Summary

The dispute in Williamson v Beere May & Meyer (A Firm) arose when the plaintiff sought to amend a proceeding to include a trustee of a unit trust as a defendant. The plaintiff aimed to join the trustee to pursue claims against the defendants, who were alleged to have acted negligently in relation to a unit trust. The dispute was heard in the Federal Court of Australia. The plaintiff, Williamson, sought to amend the proceeding to include the trustee as a defendant, arguing that the trustee had a cause of action against the defendants for their alleged negligence. The defendants, Beere May & Meyer (A Firm), opposed the amendment, contending that it was an attempt to circumvent the limitation period for actions against the trustee.

The court was required to determine whether the plaintiff had established the need for special or exceptional circumstances to allow the beneficiary to pursue the trustees' cause of action. The court needed to assess whether the plaintiff had demonstrated a valid reason for the delay in joining the trustee as a party and whether there were any factors that warranted the amendment. The court also had to consider whether the trustee had an independent cause of action against the defendants and whether the amendment would prejudice the defendants.

The court found that the plaintiff had not established the need for special or exceptional circumstances to allow the beneficiary to pursue the trustees' cause of action. The court held that the plaintiff had not demonstrated a valid reason for the delay in joining the trustee as a party and that there were no factors that warranted the amendment. The court also found that the trustee did not have an independent cause of action against the defendants and that the amendment would prejudice the defendants. Consequently, the court dismissed the plaintiff's application to amend the proceeding to include the trustee as a defendant.

The court ordered that the plaintiff's application to amend the proceeding be dismissed and that the trustee remain as a non-party to the proceeding. The court also ordered that the defendants were not to be prejudiced by the plaintiff's attempt to join the trustee as a party. The court held that the defendants were entitled to costs on an indemnity basis, which the plaintiff was required to pay.

Orders