Belgravia Nominees Pty Ltd v Lowe Pty Ltd

(2017) 51 WAR 341; [2017] WASCA 127

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Amendment of originating process
3. › Leave to amend indorsement of writ
4. › New cause of action statute-barred by limitation legislation
5. › Whether amendment should be refused where limitation defence foreshadowed but application to extend limitation period also foreshadowed
6. › Whether futility of amendment established
7. › Rules of the Supreme Court 1971 (WA), O 21 r 5
8. › Limitation Act 2005 (WA), ss 38, 43
1. Practice and Procedure
2. › Amendment of originating process
3. › Relation back doctrine
4. › Whether doctrine of relation back applies in Western Australia
5. › Whether O 21 r 5(2)-(5) have continuing utility after demise of relation back doctrine
6. › Rules of the Supreme Court 1971 (WA), O 21 r 5
1. Limitation of Actions
2. › Extension of limitation period
3. › Fraud or improper conduct
4. › Whether application to extend time may be made in existing proceedings
5. › Whether s 38 applies to amendment of originating process in existing action
6. › Limitation Act 2005 (WA), ss 38, 43

Quick Take

Practitioners in Western Australia seeking to amend writs to add new causes of action that may be statute-barred should note that the amendment should generally be allowed with limitation questions resolved at trial, and that a foreshadowed application under s 38 of the Limitation Act 2005 (WA) is relevant to whether a limitation defence would inevitably succeed.