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This case concerned an application by a plaintiff in civil proceedings for leave to amend its claim to include new parties and causes of action out of time. Those parties were assignees of a lease held by the plaintiff of the land constituting the Logan City Golf Course. The plaintiff relied on r 376(4) Uniform Civil Procedure Rules 1999. Bowskill SJA refused to allow the amendments on the basis that, it is inappropriate to allow an amendment pursuant to r 376(4) where the cause of action is that of a non-party who could not be joined under r 69. The provisions of the UCPR, including rr 376(2), 376(3) and 69(2), make very limited provisions for amendments – none of which were present in this case. Her Honour also noted the purpose of those limiting provisions was to protect defendants from unfairness associated with causes of action being raised out of time. Other amendments sought under the plaintiff’s application are not the subject of this note.
11 November 2021
Logan City Council (the respondent) leased land, on which the Logan City Golf Course was built, to Australian Golf Management Corporation Pty Ltd (the plaintiff). . In turn, the plaintiff subleased the land to Cosmo Gold Pty Ltd, who further sub-leased it to Logan City Golf Club Pty Ltd. , . The respondent later built a sewerage pipeline by an open cut trenching across the golf course, which caused extensive damage to the course. . In 2019, the plaintiff brought a claim for over $12 million damages on the basis of breach of contract (quiet use and enjoyment clause) or, alternatively, trespass. .
In September 2021, the plaintiff sought leave to amend its claim and statement of claim, including to add claims for trespass on the interests of assignees: Cosmo Gold Pty Ltd and Logan City Golf Club Pty Ltd (a sub-sublessee from Cosmo). –. In particular, those additional claims were for loss of profits from the operation of the golf course, resulting in unpaid rent by Cosmo and the Logan City Golf Club. . Those claims, it was conceded, were out of time at the date amendment was sought, but current at the time the proceeding was started – over 12 months previously. –.
The plaintiff relied on rr 375 and 376 Uniform Civil Procedure Rules 1999 (“UCPR”) in support of the amendment being made. Those rules allow a court to grant leave for a party to amend a claim or pleadings to correct the name of a party or include a new cause of action if the Court considers it appropriate to do so and (pursuant to r 376(4)) the new cause of action arises out of substantially the same facts as those already claimed. .
The respondent argued the operation of r 69 UCPR prevents an amendment under r 376(4) “where the cause of action is that of a non-party who could not be joined under r 69”. . Alternatively, the respondent contended the new causes of action did not arise out of substantially the same facts as those the plaintiff had already pleaded. –.
Decision of the Supreme Court
Bowskill SJA dismissed the plaintiff’s application to amend its claim and pleadings to include Cosmo and Logan City Golf Club. . Her Honour accepted the respondent Council’s submissions as to the construction of rr 69 and 376(4) UCPR. . Bowskill SJA held:
“On the proper construction of r 376, in the context of the UCPR as a whole, including relevantly r 69, in my view it is inappropriate to permit an amendment under r 376(4) where the cause of action is that of a non-party who could not be joined under r 69.” .
Her Honour found the UCPR limits “the circumstances in which amendments may be made, either to add a party (r 69) or a cause of action (r 376), after the limitation period has ended”. . Her Honour referred to rr 376(2) and 376(3) UCPR, finding both make very limited provisions for amendments affecting the name, identity or capacity of a party. . Her Honour also referred to r 69(2) UCPR, which states “the court must not include or substitute a party after the end of a limitation period unless 1 of the following [circumstances] applies”. . Her Honour found none of those circumstances would apply in this case. . The purpose of r 69(2) is to ensure fairness to the defendant, for example, by not being taken by surprise. . The effect of allowing an amendment to join a non-party to the proceeding, in the absence of a close association, would “defeat a good defence under the limitation of statute”. .
Bowskill SJA also accepted the respondent Council’s alternative submission that the new causes of action did not arise out of substantially the same facts. . For example, the assignment of interests by the plaintiff to Cosmo and the Logan City Golf Club would be a new fact necessitating evidence, and the “nature of the interest said to be affected by the alleged trespass is different”. .
A Hughes of Counsel