Wilga Co-operative Housing Society No 6 Limited v Evans
[2000] QDC 280
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- Wilga Co-operative Housing Society No 6 Limited v Evans[2000] QDC 280
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Wilga Co-operative Housing Society No 6 Limited v Evans[2000] QDC 280
Wilga Co-operative Housing Society No 6 Limited v Evans[2000] QDC 280
DISTRICT COURT | No 3535 of 2000 |
No 3536 of 2000 | |
No 3537 of 2000 |
CIVIL JURISDICTION
JUDGE BRABAZON QC
WILGA CO-OPERATIVE HOUSING SOCIETY NO 6 LIMITED | Plaintiff |
and
NOEL J EVANS | Defendant |
BRISBANE
DATE 06/09/2000
JUDGMENT
HIS HONOUR: in these three actions there is an application by the plaintiff under rules 375 and 376 for leave to amend the statement of claim. In each case the effect of the amendment, if allowed, would be to add a cause of action even though that cause of action is statute barred.
The plaintiff is a co-operative housing society. The defendant was a valuer. He gave valuations of properties where the plaintiff was asked to lend money to its members. The valuations are dated from 11 March 1993 to 14 August 1994. In each case it is accepted here, that the six years begins to run from the date of the valuation, if the Society is to take action complaining about a particular valuation.
The action progressed in a steady but unspectacular way, until the death of the defendant on 7 January 1999. It appears that his estate is being administered. There were long delays which are really unexplained. The estate's solicitors did nothing in response to overtures for discussions about settlement or further activity in the files. Finally, there was a “without prejudice” meeting on 15 February 1999, but it did not settle the claims.
The claims by the plaintiff against the defendant, and now his estate, are based in negligence. It is said that he breached his duty of care towards the building society in advising on the value of properties against which it was proposing to lend money. So much appears from the statement of claim. If there were any doubt about it, in particulars delivered on 16 December 1996, the plaintiff's solicitors made clear that they were not alleging any retainer of the valuer by the building society. That was how the matter stood when on 4 March 1999 the High Court gave its decision in the well known Astley case. The effect of that decision, which was surprising to practitioners, was to establish that unlike in claims of negligence, there could be no contributory negligence raised as a defence to a breach of contract.
That was important in this case, as it has been in so many personal injuries cases, because there was an allegation of contributory negligence raised by the defence. Up until news of the Astley decision, if the building society's legal advisers had thought about it, they would surely have regarded it as unimportant to attempt to allege a retainer. The purposes of the building society were served by alleging a breach of duty, it being obvious enough that a duty would have been owed by a valuer giving a valuation to a particular building society when he knew that it was proposing to rely on it in considering an advance to its members secured against the property which was being valued.
However, after the Astley decision, the form of the claim became important. If a retainer could be made out between the building society and the valuer, then there would be a strong prospect of defeating any claim for contribution by the plaintiff.
Mr Evans died on 7 January 1999. The sixth anniversary of his first valuation was on 11 March 1999 and so at the time of his death no cause of action was statute barred. However, progressively from 11 March 1999 the valuations fell outside the six year period. Then on 8 December 1999, the society's solicitor foreshadowed an amendment alleging a breach of a retainer as well as a breach of duty. Nothing was done about that for a time because of the inconclusive discussions between the parties. It might be noted that at the time of that advice about half the valuations were still under six years of age. On 14 August this year, the last of the valuations reached its sixth anniversary.
It is necessary to look at the proposed amendment which is set out in a draft amended statement of claim exhibited to the affidavit of Ms Cameron, paragraph 3(a). Some of the facts alleged there are common with facts already raised by the earlier pleading or by the particulars. For example, the fact that the valuer had applied to the Registrar for approval as a valuer is not a new fact.
The only new fact, which seems to be different and perhaps important, is the fact that in the letter dated 12 February 1999, the valuer wrote giving advice to the building society about his fee scales. The other documents referred to in the draft pleading are later in time. Some of them may not even be relevant to the issues which are sought to be raised. The important difference is the allegation in paragraph 4(a) that the valuer was, in the light of the above allegations, employed by the building society for the purpose of making the valuations. Paragraph 4(b) then goes on to assert that there were implied terms of that employment for the purposes of making the valuations to the effect that he would exercise care and skill, et cetera.
It is apparent therefore that the same parties are involved, the same valuations would be in issue, the same errors are complained of, the same damage is alleged, but the new thing is any fact not earlier pleaded which would tend to indicate that there was an actual retainer or “employment” relationship between the parties, something which was disavowed before the conversation of 8 December 1999.
It is said that there will be prejudice to the estate if this amendment is now allowed because of Mr Evans' death. There may be prejudice. It is, I think, unlikely to be of any serious kind. Instructions generally were no doubt taken from him because the action was being defended. No oral arrangement is now in issue. The only new facts alleged in the pleading relate to several documents. It should be kept in mind that it would have seemed unimportant to consider the question of any retainer until the decision in Astley, which was surprising to the profession.
The principles to be applied can be illustrated by two decisions of the Court of Appeal. The first in time is the decision in Allonnor Pty Ltd v. Doran, Appeal 5210 of 1998 (Court of Appeal judgment, 17 November 1998, unreported).
That was a personal injury case where it was alleged that a worker hurt himself because of two incidents on the one day, both contributing to back or neck injuries. In each case he was lifting something different, at a different place.
The Court of Appeal held, nonetheless, that the second incident was one that arose substantially out of the same facts. Attention was paid to the approach adopted in the United States where it was said that the policy underlying limitation statutes which allow amendment is this: “it is not threatened by an amendment that merely adds a ground of recovery or defence arising out of a transaction or occurrence already in suit.” See the discussion by Mr Justice McPherson about that approach.
More recently, there is the decision in Draney v. Barry and Foote (Court of Appeal No 11361 of 1998, judgment 30 November 1999, unreported). There it was made clear by the Court that section 81 of the Civil Justice Reform Act, which applies to all Queensland Courts, had the effect of finally putting an end to the lingering effect of the Rule in Weldon v. Neale. That is to say, it is now clear that applications of this kind are an appeal to the Court's discretion in the circumstances, and that no special or unusual circumstances have to be shown before that jurisdiction can be invoked.
In this case, there is no need to go beyond the rules in considering the application. As was done in that case, it is necessary to consider to what extent there is an overlap between the facts which would have to be proved in the existing case made by the building society, compared to the case that will have to be proved if the amendment is allowed. The court should take into account questions of delay and prejudice.
In my opinion, the discretion provided for both by section 81 and by the uniform rules should be exercised on the basis of the above facts in favour of allowing the amendment. There is a considerable degree of overlap.
The order, therefore, is:
- (a)In each case that the plaintiff have leave to amend the plaint in accordance with the draft pleading annexed to the affidavit of Julie Patricia Cameron filed herein, notwithstanding the effect of the Limitation of Actions Act.
- (b)Pursuant to rule 386, it is ordered that the costs of and resulting from the amendment are to be paid by the plaintiff, otherwise order that the costs of and incidental to the plaintiff's application to amend be reserved.