SCANLAN -v- 2-4 MCCABE PTY LTD [2026] WASC 92 (23 March 2026)

1. The Joinder Application is brought pursuant to O 18 r 6 of the Rules of the Supreme Court. That order provides:
   1. Misjoinder and nonjoinder of parties

(1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -

(a) order that any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b) order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party, but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.

(3) An application by any person for an order under subrule (2) adding him as a defendant must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter.

1. Order 21 r 5(1) of the Rules of the Supreme Court permits a party to amend a writ once before the close of pleadings without leave. This rule does not apply, however, where a new cause of action is added.[1] Therefore, where a new cause of action is added, leave is required.
2. The grant of leave is addressed in O 21 r 5 of the Rules of the Supreme Court. That rule provides as follows:
   1. Amending writ or pleading with leave

(1) This rule is subject to -

(a) Order 18 rules 6, 7 and 8; and

(b) Order 20 rule 19(2) to (5).

(2) The Court may at any stage of the proceedings, without determining whether any relevant period of limitation has expired, allow the plaintiff to amend the plaintiff's writ, or any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may direct.

1. The power of amendment in O 21 r 5 is subject to O 18 r 6 and does not arise in relation to an amendment to add a party. In Lois Nominees Pty Ltd v Hill[2] Beech J (as his Honour then was) said that the general power of amendment in O 21 r 5 is subject to O 18 r 6. He explained why as follows:[3]

If a party obtained leave to amend to add a party under O 18 r 6 there will, of course, be no need to seek leave under O 21 r 5. But that cannot be what is intended to be conveyed by the statement that the general power in O 21 r 5 is 'subject to' O 18 r 6, r 7 and r 8. The language is 'subject to', not 'in addition to'. Moreover, the central function of O 21 r 5 is to confer a power: 'the court may'. It is that conferral of power that is made subject to O 18 r 6, r 7 and r 8. That supports reading the rule to mean that the power is not conferred in relation to the subject matter of O 18 r 6, r 7 and r 8: amendment to add or substitute a party.

In construing the words 'subject to', consideration should also be given to pars (b) and (c) of O 21 r 5. The application of that phrase to par (c) provides no difficulty. The general power in O 21 r 5(1) is subject to the more particular provisions in the following subsections. Paragraph (b) however is difficult to make sense of. It makes the general grant of power to amend subject to O 20 r 19(2) - (5). For example, the reference to O 20 r 19(2) does not make sense. I infer that that is either a clerical error or a reference to an earlier version of O 20 r 19. Broadly, however the intention is reasonably apparent. The general power to give leave to amend in O 21 r 5 is subject to the more particular powers to amend or strike out provided for in the relevant parts of O 20 r 19.

In summary, therefore, in my view, the only reasonable construction of O 21 r 5(1)(a) is as follows. The general power of amendment in O 21 r 5 does not arise in relation to an amendment to add a party. Rather, an amendment to add a party is governed by O 18 r 6, r 7 and r 8. That seems to me to carry a strong if not necessary implication that there are no other rules that empower amendment to add a party.

1. In Wurth Australia Pty Ltd v Burgess,[4] Corboy J summarised the principles to be applied when determining an application under O 18 r 6(2)(b) as follows:

(a) The rule is designed to avoid unnecessary technicality so that the parties may litigate the real issues between them in an expeditious, efficient and cost effective way: Elovalis v Elovalis [2008] WASCA 141 (S) [6]. Consequently, the phrase 'all matters in dispute' should be given a beneficial interpretation. The phrase should be afforded the widest interpretation that the language of the rule will permit.

(b) Further, the phrase gives the rule an 'elastic' application. The rule is not to be construed so that the matters in dispute are limited to matters arising on the existing pleadings. The disputed matters for the purpose of the rule may include disputed issues of fact that are 'subjacent' to the pleadings: Elovalis [7].

(c) In Amon v Raphael Tuck & Sons Ltd [1956] 1 QB 357, Devlin J observed that the expression 'the cause or matter' in the then equivalent English rule referred to the action 'as it stands between the existing parties' - '[i]f it were otherwise, then anybody who showed a cause of action against either a plaintiff or defendant could, of course, say that the question involved in his cause of action could not be settled unless he was made a party' (369; see also, at 378). Similarly, Adams J in Birtles v Commonwealth of Australia [1960] VicRp 39; [1960] VR 247 held that the reference to 'cause' in the then equivalent Victorian rule referred to the existing cause or matter against the original defendant (251).

(d) Although O 18 r 6(2) is to be interpreted beneficially, the test imposed by the rule is necessity; a party cannot be joined merely because it is thought to be just or convenient: The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 3] [2010] WASC 223; Vandervell Trustees Ltd v White [1971] AC 912, 935 - 936 (Viscount Dilhorne).

(e) The rule requires the court to consider whether the proposed parties' rights against or liabilities to any existing party in respect of the subject matter of the action will be directly affected by any order that may be made in the action: Pegang Mining Co Ltd v Choong Sam [1969] UKPC 16; [1969] 2 MLJ 52, 55 - 56; News Ltd v Australian Rugby Football League Ltd [1996] FCAFC 870; (1996) 64 FCR 410, 524 and Homestyle Pty Ltd v City of Belmont [1999] WASCA 59 (Templeman J, with whom Malcolm CJ and Owen J agreed). In a passage that was cited with approval in Homestyle and more recently by the Court of Appeal in Cheng Chih Tiao v Sheng Chin Lai [No 2] [2010] WASCA 189, the Full Court of the Federal Court in News Ltd v Australian Rugby Football League observed, in relation to the test identified by the Privy Council in Pegang Mining, that (525):

The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party's rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent. This is particularly so with remedies in the nature of an injunction: see Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 322 per Kirby P. The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential.

(f) The focus in considering an application to join a defendant is on the rights and liabilities of the proposed defendant and not on 'some looser concept of "interests"': Alinta Asset Management Pty Ltd v Essential Services Commission [2007] VSC 32 (Hollingworth J) (and see Amon at 379 and the comments of Edelman J in Martin Bruce Jones as Receiver and Manager of Miami Waterfront Developments Pty Ltd v Miami Waterfront Developments Pty Ltd [2012] WASC 483 [13] - [14]). An order that directly affects a third person's rights against or liabilities to a party should not be made unless the person is also joined as a party: News Ltd (524). Consequently:

Where, before trial, a question arises whether a necessary party has been joined, attention should be directed to the orders sought in the proceedings. It is the effect of the orders upon the third party that must be determined. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties, or whether the third party is a party to a contract, the meaning or effect of which is pleaded as a matter relevant to the ascertainment of the rights between those parties. (News Ltd at 525).

1. Justice Corboy's summary has been frequently quoted and followed by judges in this court. I respectfully agree with that summary.
2. Justice Corboy's summary referred to observations made by the Court of Appeal in Elovalis that the expression 'all matters in dispute' has been held to have an elastic application and that the disputed matters for the purpose of the rule may include disputed issues of fact that are 'subjacent' to the pleadings. In making that observation, the Court of Appeal referred to a decision of the New South Wales Court of Appeal in Qantas Airways Ltd v AF Little Pty Ltd.[5] What is meant by subjacent to the pleadings is illustrated by an understanding of the facts in that case.
3. In Qantas, the plaintiff building owner had initially sued engineers and architects for breach of contract and in tort in relation to the construction of a building. The plaintiff sought leave to join the builder as an additional defendant and plead in the alternative that the builder was liable.
4. Justice Glass (Court of Appeal) began by noting that the primary judge:

... directed himself that the rule was to be construed in accordance with the views expressed by Devlin J, as he then was, in Amon v Raphael Tuck & Sons Ltd [1956] 1 QB 357, at p 380 when considering the provisions of the Rules of the Supreme Court, O 16, r 11 which are in relevant respects identical, he said:

'The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.'

1. The observations of Devlin J (as his Honour then was) in Amon v Raphael Tuck & Sons Ltd[6] are mentioned in Corby J's summary in Wurth.
2. Justice Glass considered that the applicability of some of the observations made by Devlin J in Amon might be doubted. He said:[7]

But it is to be observed that in Amon [1956] 1 QB 357, and in all the subsequent decisions which approved it with or without modification, the application of the rule was being considered in a context where a third party was seeking to intervene over the opposition of the plaintiff. It is no doubt proper in such a factual context to judge the necessity for adding a new defendant in terms of the matters in dispute raised by the plaintiff. But the existence or otherwise of a relationship of necessity is to be judged in an altogether different manner when it is the plaintiff who seeks to add a defendant. The relevant procedural context discloses a plaintiff seeking leave after commencement of proceedings to add a party which he could have joined under r 2(a) without leave when filing his originating process. It cannot be an effective answer for the party resisting addition to point out that the proceedings as constituted cannot yield an order which will directly affect him. It is for this reason that the application is being made. It seems to me that the addition of a further defendant in those circumstances is not only sanctioned but encouraged by the statutory imperative contained in s 63 of the Supreme Court Act, B 1970 and Pt 20, r 1(2) of the rules that multiplicity of legal proceedings should be avoided. The inapplicability of the Amon test [1956] 1 QB 357 where the plaintiff is seeking leave is recognized in that decision itself (at p 386):

'If, after he has issued his writ, he wants to join another defendant, no doubt he will have to proceed under rule 11, but he will not have to show that the new defendant will be directly affected by an order in the action as it is then constituted: what he generally shows is that he cannot get effectually and completely the relief he asks for unless the new defendant is joined, and that, in that sense, the new defendant is a necessary party to the action.'

The different considerations pertinent to a plaintiff's application were recognized in Birtles v Commonwealth of Australia [1960] VicRp 39; [1960] VR 247, at p 251; Black v Houghton [1968] Qd R 179, at pp 187, 188 and Chappell v Ballestrin [1965] SASR 47, at p 49. Where a plaintiff applies to add a defendant the phrase 'all matters in dispute in the proceedings' should not be construed as limited to matters arising on the existing pleadings. It may also properly include those disputed issues of fact which are subjacent to the pleadings. For present purposes the phrase in my opinion includes questions such as whose default caused the instability of the structure and who is liable to the plaintiff in damages for such instability. When the plaintiff asserts on tenable grounds that such matters of dispute cannot be completely determined without the joinder of the builder as a party, a ground for the exercise of the power given by r 8 is made out and an order to that effect cannot be challenged for want of power.

(emphasis added)

1. I understand the reference to 'issues of fact which are subjacent to the pleadings' in this context to include the disputes of fact that underlie the issues that arise for determination on the pleadings.
2. Although the phrase 'all matters in dispute' should be given a beneficial interpretation and an 'elastic' application, there are limits to the power of amendment in O 18 r 6. Those limits are illustrated by the reasons given by Kenneth Martin J in ISPT Pty Ltd v Ooranya Pty Ltd [No 2].[8]
3. In that case the tenant plaintiff made a private nuisance claim against its landlord who in turn brought third party proceedings against the City of Perth seeking a contribution pursuant to s 7 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), claiming that the City of Perth was a joint tortfeasor.
4. The plaintiff then sought to join the City of Perth as a second defendant, to pursue a nuisance and a breach of contract claim against the City. The plaintiff also sought joinder under s 5AN of the Civil Liability Act 2002 (WA) (Civil Liability Act) which permits joinder where a claim is apportionable. The plaintiff argued that the nuisance claim might be an apportionable claim. The City resisted joinder on the basis that joinder was not necessary.
5. Justice Kenneth Martin J refused to allow joinder to permit the plaintiff to pursue the breach of contract claim as he did not consider it necessary or appropriate to permit an entirely distinct claim to be added to litigation that had been on foot for 18 months.[9]
6. Although Kenneth Martin J ultimately ordered joinder in relation to the nuisance claim under the Civil Liability Act,[10] his Honour expressed doubt about whether joinder could be ordered under O 18 r 6. He considered that the new claims went beyond those raised in the original claim.[11] He indicated that he would not have given leave under O 18 r 6 because joinder was not necessary.[12]

The claim that the plaintiff currently makes against the defendant

1. As I have mentioned, pursuant to the Contract, the plaintiff agreed to purchase from the defendant a strata unit to be constructed in North Fremantle at 2-4 McCabe Street.[13]
2. The Contract included two clauses that permitted the defendant to terminate the Contract by notice in certain circumstances: cl 2.1 and 2.2.
3. Clause 2.1 provided that the defendant may terminate the Contract, by giving notice to the plaintiff on or before the 'Withdrawal Date', if the defendant in its absolute discretion considered that there were insufficient sales of the proposed strata lots during the period up to the Withdrawal Date, or that there were insufficient projected sales.[14]
4. Clause 2.2 provided that if, at any time, the defendant formed the opinion that the Scheme Plan will not be registered by 9 March 2024, it may terminate the Contract by giving written notice to the plaintiff of its view on or before 9 March 2024 but prior to Settlement.[15]
5. The plaintiff alleges that on the proper construction of the Contract, the defendant could only exercise its power to terminate the contract under clause 2.1 if it in fact considered that there were insufficient pre-sales and clause 2.2 if in fact it had formed the opinion that the Scheme Plan would not be registered by the Withdrawal Date.[16]
6. The plaintiff also contends that the defendant's power to terminate the Contract under clauses 2.1 or 2.2 was subject to a requirement that it be exercised reasonably and in good faith.[17]
7. The plaintiff alleges that on 3 June 2022, the defendant gave him notice by email that he had not achieved sufficient pre-sales for the proposed strata lots and that he was terminating the Contract pursuant to clause 2.1 of the Contract.[18]
8. The plaintiff alleges that on 17 August 2022, the defendant issued a notice terminating the Contract pursuant to clause 2.1 and 2.2 of the Contract.[19]
9. The plaintiff alleges that despite issuing the notices, the defendant did not:

(a) in fact consider that there were insufficient pre-sales;

(b) terminate the Contract because in fact it considered that there were insufficient pre-sales; and

(c) form the opinion that the Scheme Plan would not be registered by the Withdrawal Date.[20]

1. In this regard, the plaintiff pointed to the fact that despite terminating the Contract, the defendant continued to develop and market the property.[21]
2. On this basis, the plaintiff denies that the defendant had any right to terminate the Contract in the manner that it purported to do.[22]
3. The plaintiff contends that although the defendant by its conduct repudiated the Contract, he elected to affirm the Contract.[23]

1. The plaintiff has filed a copy of a draft Amended Statement of Claim setting out the proposed amendments to the present statement of claim (the Minute).
2. Mr Adams is alleged to be a director of both the defendant and Yolk.[24]
3. Yolk is alleged to be a company that entered into an agreement with the defendant to manage the planning, development, construction, marketing and sale of lots at 2-4 McCabe Street.[25]
4. The amendments proposed in the Minute suggest that it may have been Yolk rather than the defendant who informed the plaintiff that the cost of the property had increased due to an increase in construction costs and issued a cancellation notice to the plaintiff.[26]
5. As I have mentioned, the Minute proposes to add three new causes of action.
6. The first is that the defendant engaged in misleading and deceptive conduct contrary to s 18 of the ACL. The plaintiff alleges that the defendant made various misleading representations to him about when construction would be complete which he relied upon when he entered into the Contract. The plaintiff alleges that the defendant's misleading and deceptive conduct caused him to lose the opportunity to purchase another property. [27]
7. The second new cause of action is for alleged unconscionable conduct that it is claimed the defendant engaged in.[28]
8. It is alleged that the defendant allowed another of the defendant's directors to unduly delay construction which increased costs. It is alleged that the defendant did not disclose this to the plaintiff and that the defendant took steps to undermine the bargain it had made with the plaintiff. The plaintiff alleges that given what the defendant knew at the time, there was no proper basis for it to terminate the Contract. It is alleged that the unconscionable conduct resulted in the plaintiff losing the opportunity to purchase an alternate property.
9. The third new cause of action is for the tort of interfering with contractual relations and a tortious conspiracy that it is alleged that the defendant, Yolk and Mr Adams engaged in.[29]
10. The plaintiff alleges that Yolk, or alternatively, Mr Adams unlawfully interfered with the Contract, and induced the defendant to breach the Contract to impose a unilateral increase in the purchase price or terminate the Contract.[30]
11. The plaintiff also alleges that the defendant, Yolk, and Mr Adams conspired by unlawful means to defraud him of his contractual rights.[31]
12. The loss claimed is the same loss claimed for the breach of contract claim with the addition of a claim for loss of enjoyment and 'costs associated with investigating and counteracting the machinations' of the defendant, Yolk, and Mr Adams.[32]
13. The defendant objected to the grant of leave to amend the writ of summons and to joinder, on the basis that the Minute was liable to be struck out because it either failed to disclose a reasonable cause of action, or may embarrass or delay the fair trial of the action.

1. I will consider the amendments that the plaintiff proposes to make to his claim against the defendant first, as those amendments could have been made without leave pursuant to O 21 r 3(1) of the Rules of the Supreme Court and do not require joinder.
2. Some of the amendments simply correct typographical errors. I do not perceive those amendments to be controversial. The balance of the amendments are.

1. The defendant alleged that paragraph 18(d)(i) of the Minute made an allegation that was drawn from a document that the defendant claimed was subject to legal professional privilege. The defendant asserted that the paragraph used particular words that could only have been drawn from a privileged document.
2. Paragraph 18(d)(i) makes no express reference to any document. Nor is it clear to me how the issue raised by the defendant regarding this paragraph discloses that the plaintiff's claim discloses no reasonable cause of action or was embarrassing.
3. It is not necessary for me to address this issue further, however. During the course of the hearing, counsel for the plaintiff indicated that the Minute would be amended to remove reference to the particular words that concerned the defendant.[33]

The new claim for damages for 'loss of opportunity'

1. The defendant contends that new particular B to paragraph 26 was vague and embarrassing. Paragraph 26 alleges that the defendant's breach of contract caused the plaintiff loss and damage.
2. New particular B is that the plaintiff suffered a loss of opportunity, including a loss of the opportunity to require that the property be built using the specifications that had been agreed upon under the Contract, where the specifications in fact used have devalued the property.
3. The defendant complained that the Minute failed to provide particulars of the alleged specification that devalued the property and the alleged devaluation. The defendant contended that it was unclear what other loss of opportunity may have been suffered, and no relevant material fact had been pleaded. It argued that it was unclear what specifications could be agreed under the Contract.
4. The plaintiff submitted that the amendment does not alter the nature of his claim, and he referred to an observation in this regard made by Allanson J in Koolan Iron Ore Pty Ltd v GHD Pty Ltd [No 2].[34] The plaintiff argued that if the defendant required more information, it should seek further particulars. It was submitted that this was not a basis to prevent him from amending his writ to add new causes of action.
5. I consider that there is some force in the defendant's criticisms of the pleading of particular B. In its current terms, it is vague and embarrassing. The use of the word 'including' suggests that other claims for loss of opportunity are made which are not disclosed. Further, the failure of the particular to identify the specification that it has alleged devalued the property, or the amount of the devaluation, mean that the defendant will not know the case it must meet.
6. It does seem to me that these issues might readily be addressed by the re-pleading of particular B. If the Minute was amended to properly address these issues, I would be minded to give leave to amend.

The new misleading or deceptive conduct claim against the defendant

1. The misleading or deceptive conduct claim against the defendant is pleaded in paragraphs 29 to 39 of the Minute. Paragraphs 29 to 31 of the Minute plead three representations that the plaintiff says were made. Paragraph 35 of the Minute pleads that the plaintiff entered into the Contract in reliance on those representations.
2. The difficulty is that only one of the representations pleaded in paragraphs 29 to 31 (the one in paragraph 29) were made before the plaintiff entered into the Contract. The other two were made after the plaintiff entered into the Contract.
3. The defendant argues that the claim for misleading or deceptive conduct therefore either fails to disclose a reasonable cause of action, or may embarrass or delay the fair trial of the action.
4. I agree that there is an obvious difficulty with the pleading in its present form. The plaintiff's counsel accepted as much at the hearing before me.[35]
5. I do not consider, however, that this difficulty means that the plaintiff should be refused leave to amend provided the claim is limited to that made in paragraph 29. The plaintiff's counsel acknowledged the difficulties with the Minute and said that what would ultimately be filed would address those difficulties.[36]
6. The defendant also complained that paragraph 36 was ambiguous. That paragraph pleads that the plaintiff would have taken steps to purchase an alternative property if the defendant had informed him that there was no certainty about whether or when the development would be completed.
7. In my view, any material ambiguity in paragraph 36 is removed if leave to plead the representations made in paragraphs 30 and 31 is refused. Given that I will refuse leave to amend to plead the representations made in paragraphs 30 and 31, I do not consider that the paragraph is ambiguous.

The new unconscionability claim against the defendant

1. The defendant argued that paragraph 42 of the Minute would prejudice embarrass or delay the fair trial of the action. That paragraph was part of the plaintiff's new claim for unconscionability. The paragraph pleads that 'from in or around February 2022' the defendant was 'taking steps to undermine the bargain that it had struck with' the plaintiff.
2. The defendant argued that the incorporation of paragraph 42 into paragraph 44 of the Minute made the latter paragraph objectionable on the same basis.
3. The plaintiff contended that there was nothing vague about the claim for unconscionability pleaded in the Minute. He argued that it would be open to him on the pleading to prove facts to establish a claim for unconscionability.
4. The particulars to paragraph 42 provide that the plaintiff refers to and repeats paragraph 17, 19 and 22 above. Paragraph 17 pleads that the defendant engaged in various activities between February 2022 and August 2022. Paragraph 19 pleads that by reason of the matters pleaded in paragraph 18, the defendant did not have the right to terminate.
5. Paragraph 22 pleads that by reason of the matters pleaded at paragraphs 13 to 15 and paragraph 21, from on or about 16 May 2022, the defendant:

(a) was acting in a manner that evinced an intention to no longer be bound by the terms of the Contract;

(b) was unwilling or unable to perform its obligations under the Contract; and

(c) had thereby repudiated the Contract.

1. In my view, when the allegation made in paragraph 42 is read with the particulars, it is apparent that the plaintiff's case is that the steps taken to undermine the bargain are those pleaded in paragraphs 17, 18 and 19. I do not think that there is any merit to the defendant's complaint.

Why the plaintiff contends joinder is necessary

1. The plaintiff submitted that the test of necessity is met because the plaintiff seeks relief against Yolk and Mr Adams and alleges that each of them are liable in tort.[37] He did not argue that Yolk or Mr Adams were necessary parties other than by reason of the amendment proposed in the Minute.
2. The plaintiff accepted that Mr Adams was only a necessary party if leave was given to plead the tortious conspiracy claim.
3. The plaintiff argued that the position was different in relation to Yolk. He referred to the pleading that the defendant and Yolk were parties to a development management agreement by which Yolk agreed to manage the planning, development, construction, marketing, and sale of any and all lots at the site, including by:

(a) managing and implementing marketing and sales campaigns; and

(b) managing the development and implementation of relevant sales contracts (which would include the Contract between the plaintiff and the defendant).

1. The plaintiff referred to his pleading of Yolk's conduct in connection with his breach of contract claim and his allegation that Yolk's acts or omissions occurred with the agreement or at the direction of the defendant. He contended that whether Yolk committed such acts or omissions:

(a) are matters in issue that will result in factual findings being made regarding Yolk's conduct in managing the marketing and sales campaigns, managing the development, and implementing the relevant sales contracts (including the Contract); and

(b) would affect Yolk's rights and liabilities as against the defendant under the development management agreement. It was argued that, Yolk's legal rights would potentially be affected by the matters in dispute.

1. The plaintiff argued that due to the disputed issues of fact which are subjacent to the pleadings, Yolk had a sufficient connection to the matters the subject of the proceedings to make its presence necessary for the effectual and complete determination of the matters in dispute.
2. The plaintiff submitted that the refusal of joinder could not be justified by reference to considerations of case management. [38]

1. Joinder is governed by O 18 r 6(2)(b). In its terms, the rule only permits joinder where the presence of a party 'is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon'.
2. While the words 'all matters in dispute' are to be given a beneficial interpretation, afforded the widest interpretation that the language would permit and have an elastic application, the 'matters in dispute' are still to be identified by reference to the scope of the extant proceedings. This is to be identified either by reference to the current pleadings or the disputes of fact that underlie the pleaded issues (which are 'subjacent' to the pleadings).
3. In considering the scope of the present proceedings it is necessary to consider both the claim as currently formulated and the amendments to the plaintiff's claim against the defendant that I have indicated above should be allowed.
4. The plaintiff also submitted that the court ought to have regard to the proposed tortious conspiracy claim, when determining whether Yolk and Mr Adams should be joined. He referred to three decisions in support of that proposition: Layne Christensen Company & Ors v Stanley & Ors,[39] Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd (No 2),[40] and National Companies and Securities Commission v Monsoon Nominees Pty Ltd (No 3).[41]
5. In my view, it is plainly relevant to have regard to the tortious conspiracy claim pleaded in the Minute to understand why the plaintiff proposes to join the new defendants. That the plaintiff seeks to advance a claim against a new party in proposed amendments is, however, not alone a sufficient basis to order joinder under O 18 r 6(2)(b). What must be established is that joinder is necessary, not merely that it would be just and convenient.
6. The plaintiff argued that Yolk was a necessary party (irrespective of whether or not he was permitted to join Yolk to pursue the tortious conspiracy claim) because its legal rights might 'potentially' be affected.
7. An assessment of the likelihood that Yolk's legal rights might be affected is hindered by the plaintiff's failure to clearly identify the precise nature of the legal right that he contends might be affected. It is not clear to me that there is a material prospect that Yolk's legal rights would be affected, however. It is difficult to understand how Yolk's conduct could expose it to any liability to the defendant given that the plaintiff says that that conduct occurred at the direction of, or with the agreement of, the defendant. It is notable that Yolk itself does not contend that its legal rights might be affected. Yolk actively opposes being joined.
8. I am not satisfied that the matters raised by the plaintiff make it necessary to join Yolk as a party to the proceedings.
9. Nor am I satisfied that the fact that the plaintiff wishes to pursue the tortious conspiracy claim against Yolk and Mr Adams makes it necessary to join them as parties to these proceedings. In my view, the new tortious conspiracy claim is entirely distinct from the matters presently in dispute in these proceedings. The plaintiff's claim against the defendant could readily proceed to trial without the need for the tortious conspiracy claim to be determined.
10. Refusing joinder would not prevent the plaintiff from pursuing the tortious conspiracy claim. It may be necessary, however, for the plaintiff to commence separate proceedings to do so. Consideration might then be given to the consolidation of the proceedings.
11. Such an outcome is undesirable. I consider that it would be just and convenient for the plaintiff's proposed tortious conspiracy claim to be addressed in these proceedings. Such a course would be more efficient and consistent with sound case management. If I had the power to permit the amendment and joinder on that basis alone, I would have exercised it. I do not, however. Necessity must be established and I am not satisfied that joinder is necessary.
12. Given that conclusion, I will not order joinder. I consider that leave should also be refused to amend to plead the tortious conspiracy claim.

The defendant's attack on the pleading of the tortious conspiracy claim

1. The defendant opposed joinder and the amendment to include the new tortious conspiracy claim on the basis that the Minute does not contain any reasonably arguable cause of action in tortious conspiracy. The defendant made a number of attacks on the terms of the present Minute.
2. At the hearing before me, counsel for the plaintiff indicated that it was likely that further consideration would be given to the Minute before anything was filed in light of the complaints made by the defendant.
3. Given this and the conclusion I have reached about joinder, I do not propose to address each of the complaints made by the defendant. I will observe, however, that there is some force in the defendant's complaints about the vagueness of some aspects of the present pleading. Consideration might be given to preparing a pleading with a greater degree of specificity.

1. The parties also made submissions about whether I should have regard to certain ASIC company searches. Given the conclusion I have reached, those searches would appear to be irrelevant and I do not propose to address the matter further.

1. I will hear from the parties about the appropriate orders that should be made to give effect to my reasons. My preliminary view is that the plaintiff should prepare a further minute which would include only those amendments for which I have given leave. Leave to amend in those terms might then be given, if necessary.
2. I will also hear from the parties on the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] See Order 21 r 1(3)(b) of the Rules of the Supreme Court.

[2] Lois Nominees Pty Ltd v Hill [2011] WASC 53 (Lois Nominees) [61].

[4] Wurth Australia Pty Ltd v Burgess [2012] WASC 504 (Wurth) [57].

[5] Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 (Qantas), 37D - 37E.

[6] Amon v Raphael Tuck & Sons Ltd [1956] 1 QB 357 (Amon).

[8] ISPT Pty Ltd v Ooranya Pty Ltd [No 2] [2019] WASC 453 (Ooranya).

[13] Statement of Claim, [6] - [10].

[22] Statement of Claim [19] - [21].

[23] Statement of Claim [22] - [28].

[24] Minute of Proposed Amended Statement of Claim [3B].

[25] Minute of Proposed Amended Statement of Claim [3] - [3A], [12A] - [12B].

[26] Minute of Proposed Statement of Claim [13], [14A].

[27] Minute of Proposed Statement of Claim [29] - [39].

[28] Minute of Proposed Statement of Claim [40] - [47].

[29] Minute of Proposed Statement of Claim [48] - [53].

[30] Minute of Proposed Statement of Claim [51].

[31] Minute of Proposed Statement of Claim [52].

[32] Minute of Proposed Statement of Claim [53].

[34] Koolan Iron Ore Pty Ltd v GHD Pty Ltd [No 2] [2022] WASC 442 [43].

[37] The plaintiff referred to Raindale Holdings Pty Ltd v Hundermark [No 2] [2020] WASC 202 [13] (Raindale Holdings).

[38] The plaintiff referred to Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 7) [2016] WASC 305 [23].

[39] Layne Christensen Company & Ors v Stanley & Ors [2005] WASC 169.

[40] Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd (No 2) [2022] WASC 460.

[41] National Companies and Securities Commission v Monsoon Nominees Pty Ltd (No 3) (1991) 9 ACLC 66.