Gwalwa Daraniki Association Inc v Chin [2017] NTSC 51

Centrebet Pty Ltd v Baasland [2013] NTSC 59.

In Re Clay [1919] 1 Ch 66.

Mine Trades & Maintenance Electrical Pty Ltd v Freo Group Ltd (2012) WASC 78.

Ruislip-Northwood Urban District Council v Lee (1935) 145 LT 208. Unilever Plc v The Procter & Gamble Co [2001] 1 All ER 783.

Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334.

Trans Trust SPRL v Danubian Trading Co Ltd [1952] 1 All ER 970.

Creedon v Measey Investments Pty Ltd [1990] NTSC 15; (1990) 69 NTR 19.

Yamamori (Hong Kong) Ltd v Clark (1994) NTSC 11.

Knott v JN Mousellis Civil Contractors Pty Ltd & Anor [2016] NTSC 59.

Weldon v Neal (1887) 19 QBD 394.

[2017] NTSC 51

[1] These reasons deal with an application by the Plaintiff to join an additional defendant. The application was opposed.

[2] A summary of the background facts follows. In 2009 the Plaintiff entered into an arrangement for a proposed development on a large parcel of land it held under a Crown Lease. The promoter of the development subsequently assigned its interest to Arafura Harbour Pty Ltd ("the Developer"), the entity proposed to be joined as a defendant.

[3] The arrangement was a long-term one. The Developer was granted an option to develop the land exercisable within 12 years. In the interim the Developer was to pay the Plaintiff annual rental payments of $250,000. If the development proceeded the Plaintiff would additionally receive a lump sum payment of $1.5m and 10% of all sales.

[4] The Defendant is a legal practitioner who had previously acted for the Plaintiff. The Plaintiff retained the Defendant to represent it in the negotiations with respect to the arrangement. The Defendant recommended that the arrangement be documented in the form of a sublease and a document titled "Developers Right". Those documents were subsequently prepared and were entered into.

[5] The development required the consent of the Minister and the arrangement was expressly made subject to that consent. There appears to be some argument concerning the interpretation of the provisions in the documentation in respect of the effect of the failure to secure the Minister's consent. I cannot be any more precise than that at present as the evidence concerning that is indirect only. Other than what was said in the course of argument, that evidence consists of correspondence from the Defendant's solicitors to the Plaintiff's solicitors dated 30 May 2017.[1] The relevant part is: "The rental payable under the Sublease Agreement was expressly not repayable." The Plaintiff disputes that but I was only told that in submissions and there is no evidence of the basis of that dispute and the actual provision was not in evidence. Although I cannot, and need not, finally determine that question for current purposes, suffice to say that it will be an issue in the substantive proceedings whether refusal of Ministerial consent had the effect of terminating the arrangement, or rendering it liable to termination, or whether the arrangement could thereafter continue to the end of the term.

[6] The Plaintiff received payments under the arrangement totalling approximately $1.17m to October 2013.

[7] In August 2012 the Ministerial consent was refused however payments pursuant to the arrangement continued to be made to the Plaintiff.

[8] In late 2013 the Defendant is alleged to have advised the Plaintiff that the refusal of Ministerial consent terminated the arrangement. How this came about or why this occurred substantially after the refusal is not apparent from the available evidence, however the Defendant is alleged to have advised the Plaintiff to send a letter to the Developer, which the Defendant drafted, asserting that the arrangement was terminated. The Plaintiff sent the letter as drafted by the Defendant.

[9] The Developer's response was to treat the Plaintiff's letter as a repudiation by the Plaintiff and a breach of the terms of the arrangement. The Developer then terminated the arrangement based on that breach and claimed reimbursement of the payments the Developer had already made and other damages. No basis for either part of that claim was in evidence.

[10] These "facts" derive partly from the allegations in the current Statement of Claim. Further evidence relied on for the purposes of the application is the proposed Amended Statement of Claim. Additionally a number of items of correspondence were in evidence. Firstly, an email from the Developer's solicitors to the Plaintiff's solicitors dated 28 April 2017[2] the relevant part of which states: "We do not have instructions to issue proceedings against your client at this stage." Secondly, an email dated 18 May 2017 from the Plaintiff's solicitors to the Defendant's solicitors[3] the relevant part being: "Their [the Developer's solicitors] position is that, whilst they continue to claim that GDA [the Plaintiff] is liable to Arafura Harbour Pty Ltd for the refund of all moneys received and for other damages, they are not going to sue GDA."

[11] Although there is apparently a dispute as to whether the rental repayment can be recovered by the Developer in any case, if that is found to be the case that obviously impacts on at least part of any possible claim by the Developer. It occurs to me that even if there was a term prohibiting the recovery of annual payments different considerations might apply if the contract was rightly terminated by the Developer for breach by the Plaintiff. The relevant parts of the arrangement documents, which I consider to be evidence in relation to a key aspect going to any possible claim by the Developer, were not put in evidence.

[12] It also occurs to me that some evidence to enable an assessment of whether there was at least an arguable case that the Developer might have a claim for other damages against the Plaintiff would be useful. As is discussed below, this is relevant as the Plaintiff submits, in answer to the Defendant's submissions that joinder should not be permitted as the Developer's claim is statute barred, that the Developer has equitable relief available to it which is not subject to any limitation period. There is no sufficient direct or indirect evidence of the Developer's entitlement to make such a claim.

[13] The apparent inactivity of the Developer since the termination complicates the situation. Although the Developer apparently claimed a refund of payments and other damages, it has done nothing about that in the form of legal proceedings. Why that is the case is not known. The evidence is lacking as to the reasons for the inactivity or as to the basis of any possible claims by the Developer. The reason for the inactivity may be the provision in the documentation rendering the payments irrecoverable on refusal of Ministerial consent as the Defendant alleges. That is not relevant to other damages but nonetheless this serves to highlight the impact of the lack of evidence to that extent.

[14] The Plaintiff wishes to join the Developer to seek a declaration of its liability to the Developer, and the quantification of that liability, so that the Plaintiff can include that liability in its current claim against the Defendant. The Plaintiff asserts that any liability it has to the Developer also arises due to the negligence of the Defendant and will be additional damages which the Plaintiff can claim against the Defendant in the current proceedings. The Plaintiff submits that the question of the Plaintiff's liability to the Developer, can be, and should be, determined as part of the current proceedings.

[15] Although a party proposed to be joined is not routinely served with the application for joinder, in this case the Developer was served and was represented at the first mention of the application. At that time, it was confirmed that the Developer consented to be joined but advised that it did not intend to put on any material for the purposes of the application nor did it wish to be heard on the application. The Developer indicated that it was content to abide the decision of the Court on joinder and sought to be excused from further participation.

[16] With that background, the application is made pursuant to Rule 9 of the Supreme Court Rules and the relevant parts of that are reproduced below.

9.06 Additional, removal, substitution of party

At any stage of a proceeding the Court may order that:

(a) a person who is not a proper or necessary party, whether or not he was one originally, cease to be a party;

(b) any of the following persons be added as a party:

(i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated on; or

(ii) a person between whom and a party to the proceeding there may exist a question arising out of, or relating to or connected with, a claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding; or

(c) a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies.

9.11 Amendment of proceedings after change of party

(1) Where an order is made under rule 9.06 or 9.08, the writ or other originating process filed in the Court shall be amended accordingly within the time specified in the order or, where no time is specified, within 14 days after the making of the order, and a reference to the order, the date of the order and the date on which the amendment is made shall be endorsed on the originating process.

(2) The filing of a copy of the originating process amended and endorsed as required by subrule (1) is a sufficient compliance with that subrule.

(3) Where an order is made under rule 9.06 or 9.08 adding or substituting a person as defendant:

1. the proceeding against the new defendant commences on the amendment of the filed originating process in accordance with subrule (1) or (2);
2. the plaintiff shall serve the amended originating process on that defendant within such time as the Court directs and, unless the Court otherwise orders, it shall be served personally; and

1. unless the Court otherwise orders:
   • (i) where the new defendant is an added defendant - the proceeding shall be continued as if the new defendant were an original defendant; and

(ii) where the new defendant is a substituted defendant - all things done in the course of the proceeding before it was commenced against the new defendant shall have effect in relation to the new defendant as they had in relation to the old defendant, except that the filing of an appearance by the old defendant shall not dispense with the filing of an appearance by the new.

[17] Mr Crawley for the Plaintiff argues firstly that the joinder of the Developer is necessary to ensure that all questions in the proceedings are effectively and completely determined. Secondly, that joinder should be permitted as the questions arising between the Plaintiff and the Developer arise out of, or are sufficiently connected with, the current proceedings. That is a neat summary of the basis of the application and the application of the two limbs of Rule 9.06(b), albeit divorced from a factual matrix.

[18] The Defendant opposes the joinder on three bases. Firstly on the basis that the Plaintiff has no cause of action against the Developer. Mr McConnel for the Defendant argues that the Plaintiff only has a potential liability to the Developer. That sounds trite and I do not think that the Plaintiff cavils with that. I do not consider that it depends on whether the liability is actual or potential. What the authorities (discussed below) require is that the liability is real and not hypothetical.

[19] The Defendant also argues that no question of law or fact arises between the Plaintiff and the Developer because the proposed Amended Statement of Claim only pleads that the Developer asserts an entitlement to relief, presumably suggesting that is insufficient. I am not convinced that is the case. In conjunction, the Defendant complains that the actual relief the Plaintiff seeks against the Developer in the proposed amended pleading falls short of what is required for a negative declaration.

[20] The Defendant focussed on the negative nature of the declaratory relief sought and the actual wording in the proposed Amended Statement of Claim. The relief sought in that pleading does not expressly seek a negative declaration in that it does not seek a declaration that the Plaintiff has no liability to the Developer. Rather it seeks a declaration as to whether the Plaintiff has any liability to the Developer and if so, quantification of that liability. With that it sits neatly with the basis of the Plaintiff's application as summarised in paragraph 17. Although the Defendant is generally critical of the wording of the declaration sought, I think the focus on the wording of the relief sought is a distraction and I am not convinced that anything turns on that. In my view there are questions of law or fact between the Plaintiff and the Developer which have sufficient commonality with the questions in the current proceedings and any technical defects in the proposed pleading can be remedied in due course.

[21] The second basis relied on by the Defendant is based on the requirements for claims for declaratory relief. Primarily the Defendant relies on Hume v Monro (No 2)[4] (Hume). In that case Latham CJ said:-

There is jurisdiction to make a declaration of the non-existence of an equitable claim, but before this jurisdiction should be exercised, it should appear quite clearly that such a claim has been formulated in definite terms. The procedure enabling a court to make declarations of right without consequential relief is not to be used to enable a person who thinks that another person may make some kind of claim against him to make that person a defendant to proceedings for a declaration, so as to fix upon him the responsibility of supporting some claim which he may or may not determine to make. In an action for a declaration that a right alleged to be claimed by the defendant does not exist the onus rests upon the plaintiff of establishing first that a claim sufficiently definite and intelligible in its terms to be proper subject of adjudication has been made against him by the defendant... Next, the plaintiff seeking a declaration denying any possible foundation for the alleged claim of right must exhaust the possibilities and show that the claim cannot possibly be supported. It is not for the defendant in such a proceeding to make a claim and to justify that claim.[5]

[22] Despite the reference in the cited extract to the concern about the reversal of roles that is usually occasioned where a negative declaration is sought, the reference to that is secondary. I read that as applying to cases where the sole purpose of the application is to join a party who would not ultimately have made a claim, i.e., where the claim has not been "formulated in definite terms". The issue is not so much that reversal of roles occurs per se but that courts scrutinise claims for a negative declaration in the way suggested in that case to only permit such reversal of roles to occur where it is justified by the existence of a definite claim. The reference in correspondence from the Defendant's solicitors to the Plaintiff's solicitors[6] which complains that the Plaintiff's proposed joinder will reverse the traditional roles therefore misses the point. What is relevant, and what I see is the primary principle to emerge from that case is the requirement that there be a claim that is "sufficiently definite and intelligible in its terms to be proper subject of adjudication has been made against him by the defendant".

[23] The Defendant argues that the requirement for precision in the form of a definite and intelligible claim has not been satisfied in the current case. The scarcity of evidence produced by the Plaintiff in the current application lends support for this contention. Mr McConnel went on to argue that a declaration in clear and cogent terms was required and he suggested that for example, that the Plaintiff should seek a declaration that the Plaintiff was not liable to the Developer and to specifically allege why, for example in each case, by specifying whether that was because of frustration, or due to non-fulfilment of a condition precedent or due to the effluxion of time. Although that is arguably consistent with Hume, it is again a focus on the wording which is yet to be formalised. I reiterate that any technical defect in the proposed Amended Statement of Claim can be corrected.

[24] I think it is settled law that the Court may grant relief in the form of a negative declaration. Likewise it is settled law that the grant of such relief is a matter of discretion. In Messier-Dowty Ltd & Anor v Sabena SA & Ors ("Messier") the Court of Appeal of England said:-

The approach is pragmatic. It is not a matter of jurisdiction. It is a matter of discretion. The deployment of negative declarations should be scrutinised and their use rejected where it would serve no useful purpose. However, where negative declaration would help to ensure that the aims of justice achieved the courts should not be reluctant to grant such declarations. They can and will assist in achieving justice....

While negative declarations can perform a positive role, they are an unusual remedy in so far as they reverse the more usual roles of the parties. The natural defendant becomes the claimant and vice versa. This can result in procedural complications and possible injustice to unwilling 'defendant'. This in itself justifies caution in extending the circumstances were negative declarations are granted but, subject to the exercise appropriate circumspection, there should be no reluctance to their being granted when it is useful to do so.[7]

[25] In the Northern Territory, the latest authority is Centrebet Pty Ltd v Baasland[8] ("Centrebet") where the Court said:-

The jurisdiction to make a declaration is "a very wide one". Generally, before a court exercises its jurisdiction in favour of making a declaration it needs to be satisfied, first, that the question before it is a real and not a hypothetical question; secondly, that the person raising it has a real interest to raise it; and thirdly, that the person is able to secure a proper contradictor, that is, someone presently existing who has a true interest to oppose the declaration sought.[9]

[26] Relying on In Re Clay,[10] the Defendant submits that the course that should be followed in the current case is for the Plaintiff to wait until an action is brought against it by the Developer. Alternatively, the Plaintiff could issue separate proceedings against the Developer seeking declaratory relief. In each case, the Plaintiff would then seek consolidation at an appropriate time.

[27] In In Re Clay, a case where the only relief sought was the negative declaration, the party had not asserted any right to make a claim. All he had done was to reserve his position. The court was satisfied that the party had no right to make the claim. The court expressed caution concerning the reversal of the usual roles, similarly to the more recent case of Messier, and concluded that the best course in that case was to refuse the negative declaratory relief sought. Instead the party seeking the declaratory relief should have waited to see if an action was brought and to then defend it in the ordinary course.

[28] That operated very neatly in that case where only declaratory relief was sought and the party proposed to be joined had not indicated an intention to claim. By comparison in the current case, the declaratory relief sought is in conjunction with related and existing proceedings. The Developer in the current case has done more than the party in In Re Clay namely, it has stated an intention to recover the rental payments and it has indicated that it consents to being joined. The latter can support an inference that, despite previous inactivity, the Developer now intends to pursue that claim. On the other hand, no basis has been demonstrated to establish an arguable case that the rental payments are not irrecoverable and there is no evidence to enable an assessment of whether any other damages which the Developer may claim is real or hypothetical and that is an important consideration.

[29] Mr McConnel also relied on Mine Trades & Maintenance Electrical Pty Ltd v Freo Group Ltd.[11] In that case a mine owner had contracted with the defendant ("Freo Group") for the construction and delivery of a water desalinisation plant on its mine site. Freo Group subcontracted that to the plaintiff ("Mine Trades"). There was apparently a defect in the finished plant. The plaintiff sued for the amount due to it under that subcontract. The mine owner had not taken any action against Freo Group but in expectation of a claim, Freo Group sought to join the mine owner to seek a negative declaration. The only evidence of any possible action by the mine owner was evidence of comments by a person whose connection with, or authority to bind, the mine owner was not established to the satisfaction of the court. All that person had said was that the mine owner had incurred considerable cost in hiring replacement plant and for alternative water supply costs and that the mine owner would want to discuss that with Freo Group. The court found however that the mine owner could not determine the reason for the failure of the plant, and consequently whether or not it could take action, or on what basis, or against whom, until the replacement plant was installed and made operational.

[30] The parallel with the current case is evident from the following extract from the case:-

As I understood the submission made by Freo Group, it was concerned that it would be estopped from alleging that Mine Trades had breached the Contract....if it was subsequently sued by Downer [the mine owner] as it had already prosecuted a claim for breach of the Contract against Mine Trades. Any claim that Freo Group might possess for loss caused by a breach of the Contract by Mine Trades .....would have merged in the judgment.[12]

[31] The court said, relying on In Re Clay and subsequent cases[13]:-

The question is whether there is a real dispute between the parties on the point raised. The mere possibility of a claim is insufficient and a real dispute will not be created by one party merely reserving its rights.[14]

[32] Much was said in the decision concerning the absence of relevant evidence. Firstly the head contract was not put in evidence. That meant that the court was unable to assess the nature of the claim that the mine owner might make against Freo Group and what affect the subcontractor arrangements between the contractor and subcontractor might have on any claim by the mine owner against Freo Group. Secondly, the subcontract was not put in evidence, such that assessments of the legitimate construction of the contract were not possible.

[33] The court found that the question about which Freo Group sought a declaration was hypothetical as there was no evidence of an actual claim being made by the mine owner. The court relied on Bass v Permanent Trustee Co Ltd[15] where the High Court, in considering the availability of declaratory relief said that it was critical that there be more than a hypothetical case as that was what rendered declaratory relief different to an advisory opinion, the latter being traditionally avoided by the courts.

[34] In the end the court concluded that the appropriate course would be for Freo Group to wait and see if a claim was made by the mine owner and if so, the nature of that claim. The court concluded that Freo Group had not established that it was necessary that the mine owner be joined to ensure that all matters in dispute in the action be effectually and completely determined.

[35] In the current matter there are similar issues as to whether a claim will be made and more relevantly as to whether there is a real as opposed to hypothetical case as to damages or recovery of rental payments by the Developer. Likewise there are also concerns with the extent of the evidence.

[36] The Defendant suggests that any liability of the Plaintiff to the Developer could be determined as a separate determination or at a later date by means of liberty to apply, relying on the approach in Trans Trust SPRL v Danubian Trading Co Ltd.[16] In that case, in conjunction with a damages claim against a contracting party, a declaration was sought as to further damages against that contracting party which might subsequently arise from possible liability to a third party. The Court of Appeal of England held that the preferable course was to separately deal with potential damages flowing from a party's liability to a third party.

[37] There are a number of unanswered concerns with respect to the Developer. Despite apparently asserting an entitlement to a refund and damages, it has done nothing in over three years and the amount paid by way of rental payments is a substantial amount of money. In respect of the recovery of the rental payments, the inactivity may be accounted for by the provision rendering those payments irrecoverable. There is also some evidence that the Developer may never take action. I refer there to the evidence of a statement by the Plaintiff's solicitors in an email to the effect that the Developer will not be making a claim.[17] This however could be no more than his interpretation of the Developer's intentions based on the Developer's inactivity and the email from the Developer's solicitors,[18] rather than based on actual knowledge. That interpretation is open on the evidence and therefore I do not put any weight on that.

[38] On the other hand the Developer has indicated a consent to joinder and that was not an indication that it did not have to make. If the Developer had no intention to pursue a claim against the Plaintiff then it could have done nothing or it could have indicated opposition to joinder. As Mr Crawley submitted, why else would the Developer agree to be joined if it did not intend to pursue its rights as it would otherwise have no interest in the subject matter of the proceedings and certainly no interest in the claim of the Plaintiff or the defence of the Defendant. It would merely be exposing itself to trouble inconvenience and significant costs. All that can at least support the inference, as submitted by Mr Crawley, that the Developer does intend to pursue a claim against the Plaintiff. That however is a separate matter from the prospects of any such claim, something which I am unable to assess to any extent on the available evidence.

[39] Leaving aside for the moment any uncertainty and vagueness in respect of the Plaintiff's proposed pleading, which can be remedied, the position the Plaintiff is in is an unenviable one. The Plaintiff is faced with the same quandary as in Mine Trades and Mr Crawley made submissions to like effect as was made in that case.[19] Without prior determination of its liability to the Developer or without seeking the declaration, were the Plaintiff to proceed to judgment in the current proceedings it could not recover against the Defendant any amount to represent the Plaintiff's liability to the Developer. There would be issue estoppel between the Plaintiff and the Defendant on judgment but that would not bind the Developer. Injustice of the sort referred to in Messier[20] could result in that, after successfully obtaining a judgment against the Defendant, the Developer might thereafter obtain a judgment against the Plaintiff in separate proceedings. If the Plaintiff is correct that any such liability would also result from the Defendant's negligence[21] which would otherwise be included in the current claim against the Defendant, injustice would thereby result as the Plaintiff could not then recover that against the Defendant.

[40] The Defendant complains that there is insufficient evidence provided by the Plaintiff in support of its application. In particular, such that the basis of any possible action by the Developer against the Plaintiff is shown to be more than a hypothetical one only, contrary to the requirements of Hume. The Defendant submits that the Plaintiff ought to have led evidence, such as evidence of the nature of the relationship between the Plaintiff and the Developer so that the Court could properly test whether there was a real and not a hypothetical question. I agree that the evidence is insufficient for the reasons discussed above. The onus is on the Plaintiff in that respect and on the available evidence I cannot conclude that onus is discharged.

[41] After considering all the issues and weighing up the state of the evidence concerning key issues, particularly the uncertainty that the Developer is contractually barred from recovering the rental payments, whether there is a basis for any liability of the Plaintiff to the Developer in respect of other damages, and the apparent reluctance of the Developer as late 28 April 2017 to take proceedings, notwithstanding its consent to joinder, in the exercise of my discretion I refuse the request for joinder.

[42] The Plaintiff then has two options, either to commence separate proceedings against the Developer seeking a similar declaration or wait until the Developer commences proceedings. Consolidation or joint hearing might then be found to be appropriate. The current proceedings should progress in the interim.

[43] Although now unnecessary, nonetheless I will also address the third basis relied upon by the Defendant to oppose joinder namely, the claim of prejudice to the Defendant. The claimed prejudice is twofold. First, prejudice in the form of additional costs which the Defendant will incur if joinder is permitted. I am far from persuaded that much turns on this. True, additional costs will likely be incurred but that will also be the case if the alternative approaches were to occur and a consolidation then resulted.

[44] Secondly the Defendant claims that prejudice will also result as any claim by the Developer against the Plaintiff is out of time. The Defendant argues that joinder would therefore have the effect of denying the Defendant a Limitation Act defence. Joinder of parties to bring in claims which are out of time are routinely refused in that situation (see Creedon v Measey Investments Pty Ltd[22] ("Creedon"). I add that although routinely refused, that is a rule of practice only and it is not an immutable rule.[23]

[45] The arrangement entered into between the Plaintiff and the Developer was a contract and hence any action on the contract would attract the limitation period set by the Limitation Act in respect of contracts, which is three years.[24] The circumstances of the termination of the arrangement likely means that the three year period has now expired.

[46] In Creedon, Asche CJ, citing with approval the discussion in Williams, Civil Procedure Victoria concerning the corresponding rules in the Victorian Supreme Court Rules, said:-

"As a general rule the court will not allow a person to be added or substituted as a party after the expiry of any limitation period applying to the claim by or against that person. An addition or substitution of a party in that situation would defeat the defence of the defendant under the limitations statute............... None the less, it was a settled rule of practice in the court immediately prior to the commencement of the new rules that leave would be refused once time had expired, and in the absence of anything in the rules to the contrary, that practice should continue."[25]

[47] The reasoning behind the rule is that it would be futile to allow joinder, or amendment in appropriate cases,[26] to advance a claim which is otherwise statute barred as it is likely to be met with a limitation defence which would be successful.

[48] The Defendant argues that on the commencement of the proceedings against the Developer any claim which the Developer might seek to make could be met with an argument that the claim was statute barred. Therefore it was submitted, applying Creedon, joinder should not be permitted.

[49] The Limitation Act however does not prescribe a time limit in respect of equitable relief.[27] Until the Developer makes a claim, the cause of action the Developer will rely on can only be speculated on. Mr Crawley however pointed out the possibility, which I think is at least arguable, that the Developer might claim equitable relief, possibly unjust enrichment. In that case the Developer may not be subject to the same limitation period as would apply to claim based on contract.

[50] The effect of Rule 9.11(3)(a) however makes it clear that joinder of a party only takes effect from the date of filing of the amended originating process. The filing of an amended originating process is required by Rule 9.11(1). Therefore there is no retrospectivity, hence the Defendant would not be denied any limitation defence it otherwise has available on that account alone.

[51] The curious situation that exists in the current case is that the Defendant only has an opportunity to argue a limitation point if joinder occurs. The alternative courses available to the Plaintiff, for example, that the Plaintiff take separate proceedings against the Developer and then seek to consolidate, would not give the Defendant any opportunity to raise a limitation defence. In any case, it is not clear why the Defendant claims to have a limitation defence in any action brought by the Developer. But for joinder, it is the Plaintiff that would the defendant to those proceedings and therefore only the Plaintiff could raise that defence. The Developer could in any case seek an extension pursuant to section 44 of the Limitation Act if that defence was raised.[28]

[52] In all I am not satisfied that anything turns on the arguments put by the Defendant in respect of limitation defences generally.

[53] I will hear the parties as to any necessary ancillary orders or directions. I propose to reserve the question of costs to enable the parties to consider these reasons for that purpose and I will grant liberty to apply in that respect.

[1] Annexure B, Affidavit of Chris Osborne made 5 June 2017.

[2] Annexure PGM2, Affidavit of Paul Gerard Maher made 19 May 2017.

[3] Annexure A, Affidavit Chris Osborne made 5 June 2017.

[4] [1943] HCA 7; (1943) 67 CLR 461.

[5] [1943] HCA 7; (1943) 67 CLR 461 at p 474.

[6] Annexure B, Affidavit Chris Osborne made 5 June 2017.

[7] [2000] EWCA 25; [2001] 1 All ER 275 at 286-287.

[8] [2013] NTSC 59.

[9] [2013] NTSC 59 at para 113.

[10] [1919] 1 Ch 66.

[11] (2012) WASC 78.

[12] (2012) WASC 78 at para 21.

[13] Ruislip-Northwood Urban District Council v Lee (1935) 145 LT 208 and Unilever Plc v The Procter & Gamble Co [2001] 1 All ER 783.

[14] (2012) WASC 78 at para 15.

[15] [1999] HCA 9; (1999) 198 CLR 334.

[18] Annexure PGM2, Affidavit of Paul Gerard Maher made 19 May 2017.

[21] The basis on which this is alleged is not however pleaded in the current Statement of Claim or the proposed Amended Statement of Claim.

[22] [1990] NTSC 15; (1990) 69 NTR 19.

[23] Yamamori (Hong Kong) Ltd v Clark (1994) NTSC 11 at 20.

[25] [1990] NTSC 15; (1990) 69 NTR 19 at 29.

[26] A different position applies in situations where a party is substituted pursuant to Rule 36, see Knott v JN Mousellis Civil Contractors Pty Ltd & Anor [2016] NTSC 59.