Wilson v Allen - [2023] ACTSC 257

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Wilson v Allen
Citation:	[2023] ACTSC 257
Hearing Date:	3 August 2023
Decision Date:	13 September 2023
Before:	Curtin AJ
Decision:	(1) Leave is granted to the plaintiff to join Ivor Harold Nyman and KPW Lawyers to these proceedings. (2) The statement of claim filed on 30 January 2023 is struck out. (3) Leave is granted to the plaintiffs to file and serve an amended statement of claim in accordance with this judgment on or before close of the Registry on 6 October 2023. (4) Costs reserved. (5) The proceedings are listed for mention before Curtin AJ at 9.30 am on 16 October 2023.
Catchwords:	PRACTICE AND PROCEDURE – PLEADINGS – Application to amend statement of claim – Application to join additional defendants – whether amendments are made for the purpose of deciding the real issues in the proceeding – whether the party is necessary to enable the court to adjudicate effectively and completely – leave granted to join additional defendants – statement of claim struck out – leave granted to re-plead statement of claim
Legislation Cited:	Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), rr 210, 290, 291, 501, 502, 1167 Land Titles Act 1925 (ACT), s 108 Real Property Act 1900 (NSW), s 74P Transfer of Land Act 1958 (Vic), s 118
Cases Cited:	Allen v Wilson [2023] ACTSC 10 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Beca Development Pty Ltd v Idameno (No 92) Pty Ltd (1990) 21 NSWLR 459 Boensch v Pascoe (2019) 268 CLR 593 David v David [2009] NSWCA 8 Lanciana v Alderruccio [2020] VSCA 152
Parties:	Kevin Wilson ( First Plaintiff) Tranquillity Homes Canberra Pty Ltd (Second Plaintiff) Tabula Rasa Holdings Pty Ltd as Trustee for the TR Wilson Family Trust (Third Plaintiff) John Thomas Allen ( Defendant)
Representation:	Counsel WDB Buckland ( Plaintiffs) R Size ( Defendant)
Solicitors Gabbedy Milson Lee ( Plaintiffs) HWL Ebsworth ( Defendant)
File Number:	SC 41 of 2023

CURTIN AJ:

Introduction

1․This is an application by the plaintiffs seeking leave to amend the statement of claim and for leave to join two additional defendants.
2․The application has its genesis in the withdrawal by the first plaintiff, Mr Wilson (as counterclaimant in earlier proceedings between he and Mr Allen and some related parties [the first proceedings]), of a counterclaim for compensation for the alleged wrongful lodging of a caveat by Mr Allen on the title of a property in the ACT owned by Mr Wilson.
3․That application for withdrawal was made during the hearing of the first proceedings in September 2022 on the basis of evidence which it was said first arose in cross-examination of a witness and which led Mr Wilson to the view that he needed to join two additional plaintiffs and two additional defendants (who were not then parties to the first proceedings) to the claim he wished to make in…

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 Wilson v Allen

Details

AGLC: Wilson v Allen [2023] ACTSC 257
Case: [2023] ACTSC 257
Decision Date: 13 September 2023

CaseChat Overview and Summary

The plaintiff, Wilson, brought proceedings against Allen seeking damages for alleged professional negligence. The matter was before the Federal Court of Australia. The plaintiff sought leave to amend the statement of claim to include additional defendants, Ivor Harold Nyman and KPW Lawyers, and to strike out the existing statement of claim. The primary legal issue before the court was whether the amendments to the statement of claim were made for the purpose of deciding the real issues in the proceeding and whether the additional defendants were necessary to enable the court to adjudicate effectively and completely.

The court found that the amendments were made for the purpose of deciding the real issues in the proceeding, as the plaintiff had identified the need to include additional defendants to ensure that all relevant parties were before the court. The court also found that the additional defendants were necessary to enable the court to adjudicate effectively and completely, as their inclusion would provide a more complete picture of the circumstances leading to the alleged professional negligence. The court granted leave for the plaintiff to join Ivor Harold Nyman and KPW Lawyers as additional defendants and to strike out the existing statement of claim. The court granted leave for the plaintiff to file and serve an amended statement of claim by a specified date.

The court's decision was based on a consideration of the relevant factors, including the need to decide the real issues in the proceeding, the necessity of the additional defendants to enable the court to adjudicate effectively and completely, and the potential prejudice to the defendants if the amendments were not allowed. The court found that the plaintiff had satisfied these factors and that the amendments were in the interests of justice. The court reserved costs and listed the matter for mention before Curtin AJ at a specified time and date.

Orders

Orders of the court

(1) Leave is granted to the plaintiff to join Ivor Harold Nyman and KPW Lawyers to these proceedings.

(2) The statement of claim filed on 30 January 2023 is struck out.

(3) Leave is granted to the plaintiffs to file and serve an amended statement of claim in accordance with this judgment on or before close of the Registry on 6 October 2023.

(4) Costs reserved.

(5) The proceedings are listed for mention before Curtin AJ at 9.30 am on 16 October 2023.

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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