JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: WOODWARD -v- SHELLAB PTY LTD (t/as SHELLABEARS) & ORS [2009] WADC 74
CORAM: PRINCIPAL REGISTRAR GETHING
HEARD: 6 MAY 2009
DELIVERED : 22 MAY 2009
FILE NO/S: CIV 2568 of 2007
BETWEEN: JOHN LONARD WOODWARD
Plaintiff
AND
SHELLAB PTY LTD (t/as SHELLABEARS) (ACN 063 252 237)
First DefendantCHRISTOPHER LANGDON SHELLABEAR
Second DefendantGEORGE WARING
Third Defendant
Catchwords:
Practice and procedure - Leave to amend defence - Consequential amendments - Admissions
Legislation:
Real Estate and Business Agents Act 1978 (WA)
Result:
Plaintiff's application to strike out dismissed
Defendant's application to amend granted
Representation:
Counsel:
Plaintiff: Ms N Graskoski
First Defendant : Mr J Garas
Second Defendant : Mr J Garas
Third Defendant : No appearance
Solicitors:
Plaintiff: Wilson & Atkinson
First Defendant : Allens Arthur Robinson
Second Defendant : Allens Arthur Robinson
Third Defendant : Tottle Partners
Case(s) referred to in judgment(s):
Banque Commerciale S.A., en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Bowes v Chaleyer (1923) 32 CLR 159
Briggs v Curtis Quick & Associates [1999] WASCA 139
Celestino v Celestino [1990] FCA 299
Dare v Pulham (1982) 148 CLR 658
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Essex Securities Pty Ltd v Lunt [2006] WASC 58
Hutton v Meston [2004] WASCA 178
Joyce v Palassis [No 3] [2007] WASC 214
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
NMFM Property Pty Ltd v Citibank Ltd [2000] FCA 1558
OD Transport (Australia) Pty Ltd (in liq) v OD Transport Pty Ltd [1998] FCA 1653
Petersen v Moloney (1951) 84 CLR 91
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Sangora Holdings Pty Ltd v Dunstan, unreported; FCt SCt of WA; Library No 990172; 13 April 1999
Shine v Williams [2007] WASCA 194
Squire v Squire [1972] Ch 391
The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239
PRINCIPAL REGISTRAR GETHING:
The factual background
The pleadings dispute before me for determination takes as its context a dispute between the plaintiff as vendor of Apartment 2, 64 Marine Parade, Cottesloe (the "Property") and the two real estate agents whom he retained to assist him to sell the Property. The two real estate agents, the first defendant and the third defendant, had unsuccessfully attempted to auction the Property on 6 November 2004.
About the same time, the second defendant, a director of the first defendant, entered into some form of arrangement (the precise nature of which is a key issue in dispute) with a Mr and Mrs Ikin. This arrangement was to find them a suitable property in the Cottesloe area. On or about 6 February 2005, Mr and Mrs Ikin entered into a written contract to purchase Apartment 1, 64 Marine Parade, Cottesloe ("Apartment 1"). It was an express term of this contract that it was conditional upon Mr and…
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- AGLC
- Woodward v Shellab Pty Ltd (t/as Shellabears) [2009] WADC 74
- Case
- [2009] WADC 74
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the defendants' proposed amendments, which included an admission of an agency relationship, were permissible and whether such an admission would be of any utility in resolving the case. The court considered whether the admission of agency, even if made, would not significantly impact the outcome of the case, given that the characterisation of the relationship was ultimately a question of law or a mixed question of fact and law. The court referred to various authorities, including The Bell Group Ltd (in liq) v Westpac Banking Corporation, Dovuro Pty Ltd v Wilkins, and Shine, which emphasised that an admission in the pleadings does not resolve questions of law.
The court held that even if there was an admission that the relationship between the first defendant (and/or second defendant) and Mr. and Mrs. Ikin was appropriately characterised as being that of "agency", the admission would be of little utility to the trial process. The court found that the question of whether or not a relationship is appropriately characterised as being one of "agency" is a question of law. The court concluded that the defendants' proposed amendments would be futile because they would not resolve the substantive legal issues at hand. The court therefore denied leave to amend the defence and pleadings.
The court's decision was that the defendants' motion for leave to amend their defence and pleadings was dismissed, and no orders were made in favour of the defendants.
Orders
Orders of the court
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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
The third issue is that, even if there was an admission that the relationship between the first defendant (and/or second defendant) and Mr and Mrs Ikin was appropriately characterised as being that of "agency", the admission would be of little utility to the trial process. This is because the question of whether or not a relationship is appropriately characterised as being that of "agency" (leaving aside what this term may mean) is a question of law, or at best a mixed question of fact and law. In this regard, the following comments from Owen JA in The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239 at [4528] in relation to an admission that a relationship was "fiduciary" are apposite:"The question whether the proper characterisation of an obligation is or is not fiduciary is a question of law or, at very least, a mixed question of law and fact. That being so, an admission in the pleadings does not resolve the issue and nor does it absolve the trial judge from the responsibility to ascertain the true state of the law and to apply it in accordance with findings that she or he has made." There are comments in the decisions in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at [68] – [71] and Shine (supra) (at [27]) to the same effect. The plaintiff relies on the decision of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd [2000] FCA 1558, at [629] for the proposition that whilst the label "agent" is not decisive of the legal conclusion of an agency relationship, it is open for the Court to given proper weight to the defendant's choice of "agency" as the label of the relationship, although it is not bound by that description. The relevant passage from the decision of Lindgren J is in slightly narrower terms, as follows (par [629]):"While it is the law, not the parties, that ultimately determines whether their relationship falls within a certain legal category, this does not mean that the parties' express agreement and their use or non-use of agency terminology are irrelevant." In this case, there is no written agreement between the first and second defendants, and Mrs and Mrs Ikin, in which their relationship is described to be that of "agency". Rather, all there is is lawyers' characterisations after the event. The other case relied on by the plaintiff on this point was the decision of Sigurdson J in Westbank v British Columbia (2000) 191 DLR (4th) 180, at [39]. However, that case also concerned the weight to be given to the characterisation adopted by the parties to agreement between them. It is likewise of no assistance on the present issue. The plaintiff goes further and states that the admission of agency is also found in correspondence between the plaintiff's solicitors and the solicitors for the first defendant and the second defendant, Allens Arthur Robinson ("AAR"). Three items of correspondence are relied on. The first is a letter dated 24 October 2008 from AAR in which there is a reference to "the agency relationship as particularised" and that "our client has no further documents evidencing the nature of the agency relationship".