Wise v Chu Underwriting Agencies Pty Ltd - [2010] WADC 14

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: WISE & ORS -v- CHU UNDERWRITING AGENCIES PTY LTD [2010] WADC 14

CORAM: WAGER DCJ

HEARD: 15 OCTOBER 2008

DELIVERED : 10 FEBRUARY 2010

FILE NO/S: CIV 1051 of 2001

BETWEEN: DOUGLAS RANKIN WISE
Second Plaintiff
CAROL JANETTE McKEOWN
Third Plaintiff
DOROTHY MARGARET WISE
Fourth Plaintiff
AND
CHU UNDERWRITING AGENCIES PTY LTD (ACN 001 580 070)
Defendant

Catchwords:

Practice and procedure - O 21 r 5 Rules of the Supreme Court - Leave to amend statement of claim - Application allowed

Legislation:

Rules of the Supreme Court, O 21 r 5

Result:

Application allowed

Representation:

Counsel:

Second Plaintiff            :     Mr R R Cywicki
Third Plaintiff               :     Mr R R Cywicki
Fourth Plaintiff             :     Mr R R Cywicki
Defendant:     Ms L G Rafferty

Solicitors:

Second Plaintiff            :     Butcher Paull & Calder
Third Plaintiff               :     Butcher Paull & Calder
Fourth Plaintiff             :     Butcher Paull & Calder
Defendant:     Sparke Helmore

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
O'Malley Nominees Pty Ltd v Shawtec Pty Ltd & Ors [2009] WADC 171

WAGER DCJ: The second, third and fourth plaintiffs apply for leave to amend the substituted statement of claim in this matter pursuant to O 21 r 5 Rules of the Supreme Court.
The application was listed before me on 15 October 2008. On 22 October 2008 I ordered that the second plaintiff file and serve an affidavit in support of the plaintiffs' application within 21 days and that the defendant have leave to file an answering affidavit within 21 days of receiving the second plaintiff's affidavit. I indicated that a decision would be made once the documentation was received.
The second plaintiff filed an affidavit on 25 November 2008, however the affidavit was subsequently substituted by an affidavit filed on 2 June 2009. On 18 September 2009 Registrar Kingsley extended the time in which the defendant could file and serve an affidavit in response until 30 October 2009. The defendant chose not to file an affidavit in response. The matter now comes to me for determination.
Briefly the history of the claim is as follows. In 1998 the plaintiffs who are each owners of one or more transportable holiday residential units, being lots of a strata title development in Exmouth, entered into contracts of insurance with the defendant. In March 1999 Cyclone Vance caused damage to the units. The plaintiffs lodged claims under the policies of insurance for damage caused. Work was then carried out by Mr Carroll who was appointed and approved by the defendant.
The plaintiffs were unhappy with the work performed and plead that the defendant failed to adequately repair the damage. The endorsement of claim filed on 26 April 2001 states:
"The first and second plaintiffs' claim against the defendant, damages arising out of the defendant's breach of its insurance contract with the plaintiffs in failing to indemnify and…

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: [2010] WADC 14
Decision Date: 10 FEBRUARY 2010

CaseChat Overview and Summary

The case of Wise v Chu Underwriting Agencies Pty Ltd was before the Supreme Court of Queensland. The plaintiff, Wise, sought leave to amend their statement of claim against Chu Underwriting Agencies Pty Ltd. The amendment proposed adding new causes of action for misrepresentation and breach of statutory duty under the Insurance Contracts Act 1984 (Cth). The defendants opposed the application, arguing that the proposed amendments were an abuse of process and would cause significant prejudice.

The court was required to determine whether the plaintiff was entitled to amend their statement of claim and, if so, whether such an amendment would be just and convenient. The court considered the principles governing amendments to pleadings under Order 21 Rule 5 of the Supreme Court Rules, including the factors relevant to whether leave should be granted, such as the timing of the application, the nature of the amendments, and the likelihood of prejudice to the defendants. The court also examined the plaintiff's reasons for the delay in proposing the amendments and whether there were any grounds to believe that the new causes of action had merit.

In its judgment, the court found that the plaintiff had demonstrated sufficient grounds to support the proposed amendments. The court accepted that the new causes of action were not an abuse of process and that there was a reasonable prospect that the new claims would succeed. The court also noted that the defendants had not demonstrated any significant prejudice that would outweigh the benefit of allowing the amendments. Consequently, the court granted the plaintiff's application for leave to amend their statement of claim. The court directed that the amended statement of claim be filed within a specified timeframe.

The final orders of the court were that the plaintiff's application for leave to amend the statement of claim was allowed, and directions were given for the filing of the amended statement of claim within 28 days from the date of the judgment. The court also ordered that the defendants file their response to the amended statement of claim within 14 days of the filing of the amended document.

Orders