APT Finance Pty Ltd v Wingside Nominees Pty Ltd

[2009] WASCA 187

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   APT FINANCE PTY LTD -v- WINGSIDE NOMINEES PTY LTD [2009] WASCA 187

CORAM:   WHEELER JA

NEWNES JA

HEARD:   20 OCTOBER 2009

DELIVERED          :   20 OCTOBER 2009

FILE NO/S:   CACV 54 of 2009

BETWEEN:   APT FINANCE PTY LTD (ACN 080 974 278)

Appellant

AND

WINGSIDE NOMINEES PTY LTD (ACN 078 036 281)
First Respondent

CHRISTOPHER PETER GALE
STEPHANIE LEE GALE
Second Respondents

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

File No  :CIV 1532 of 2004

Catchwords:

Application to amend appellant's case - Application to admit additional evidence on appeal

Legislation:

Limitation Act 1935 (WA)

Result:

Application to adduce additional evidence refused
Application to amend appellant's case refused, save to the extent to which it seeks to insert particular (c) into the ground of appeal

Category:    B

Representation:

Counsel:

Appellant:     Mr P N Bevilacqua

First Respondent           :     Mr D Vilensky

Second Respondents     :     Mr D Vilensky

Solicitors:

Appellant:     Price Sierakowski

First Respondent           :     Bowen Buchbinder Vilensky

Second Respondents     :     Bowen Buchbinder Vilensky

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

Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182

1. WHEELER JA:  This is an application to amend the appellant's case and to admit additional evidence.  Taking the additional evidence first, and applying the principles enunciated by Pullin JA in the case of Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182 at [11] ‑ [12], it seems to me that it is not in the interests of justice to admit that further evidence, as it was available to be admitted before the master. No‑one sought to admit it then. It supplements the materials which were before the master. It seems to me that it is not normally appropriate, on an appeal of this kind, for a party to be given leave to strengthen its case by the addition of further evidence which it could, if it wished, have put before the primary court.

2. So far as the application for leave to amend the appellant's case is concerned, it is proposed, in effect, to substitute particulars of the ground of appeal and omit the original par (a).  In relation to proposed substituted par (a) and additional pars (b) and (d), it seems to me that they are merely a recasting of the particulars as originally filed.  There has been no explanation for the desire to recast other than that senior counsel thought it appropriate to refine the argument.  It does not appear to me that the alterations particularly refine the argument or assist the court.  The application was made very late; that is, on 1 October 2009, the appeal notice having been filed on 14 May 2009 and the decision appealed from having been given on the 30 April 2009.  In the light of that delay, and in the light of the minor differences of substance, it seems that it is not appropriate to permit those amendments.

3. Paragraph (c) stands in a somewhat different light.  There may well be difficulties in a party seeking to establish an error of discretion on the basis that the master did not take into account a factor which was not urged upon him by the party submitting that the error was made, but that is a different issue.  The issue in relation to the amendment application is whether it is in the interests of justice that the additional particular be added.  The question of the Limitation Act 1935 (WA) was mentioned, albeit in passing, before the master. The relevant dates, it seems to me, were before the master.

4. It may be that if the master should have taken the Limitation Act into account, it is a factor which might be regarded as significant in the exercise of his discretion and it has not been submitted on the part of the respondents' counsel that he is not in a position to argue today matters arising in relation to the Limitation Act.  It seems to be a relatively confined point.  It may be an important one and, whatever the reasons for

raising it at this late stage, it nevertheless seems to me that it is in the interests of justice to grant leave to add that particular.

1. The result would be that, in my view, the application of 1 October 2009 should be refused, except to the extent to which the application seeks to insert an additional particular (which is called particular (c) in the application) into the ground of appeal.  The practical result is that the appeal will be argued on the basis of the particulars found in the appellant's case at pages 6 and 7 of the white appeal book with the addition of proposed particular (c) from the application of 1 October which, for convenience, I think we might now call particular (e).

2. NEWNES JA:  I agree with the orders proposed by Wheeler JA, for the reasons her Honour has given.