Wing Tak Engineering & Co v. Yu Ming Shiprepatring Co
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CACV000016/1979 Practice - amendment of Statement of Claim - action on account stated - application to include alternative claim for work done and materials supplied - part of that claim stale - 0.20 r. 5(5) - new cause of action did not "arise out of the same facts or substantially the same facts".
----------------- Coram: Huggins, J.A., Cons and Yang, JJ. Date of Judgment: 23 November 1979 ----------------- JUDGMENT ----------------- Cons, J. : 1. This appeal arises upon a Statement of Claim which was originally drafted by the Plaintiff to include merely an account stated for a particular sum. Later on the Plaintiff desired to amend by the inclusion in a new paragraph 2 of what are in effect particulars of the account stated, although they are rather curiously worded, and to add by a new paragraph 3 a claim in the alternative for work done and materials supplied. The Registrar allowed the amendments, which were then taken before a judge, who also allowed them and upheld the ruling of the Registrar. 2. The Appellant today, the Defendant, has relied upon a passage in the White Book. It appears at p. 350, 20/5-8/13:
3. The plaintiff Respondent has drawn our attention to another passage in the White Book, p. 163, 15/1/2A, which, in effect, defines a "cause of action" as the set of facts which need to be pleaded. It seems to me that if that definition were applied literally to the rule with which we have to deal, that is 0.20 r.5(5), it would be unrealistic to apply the rule, which would then read that we might allow the amendment if the new facts sought to be put in are the same as the facts already in. Since they are in already there would seem no point in putting them in again. 4. The Respondent has also drawn our attention to the fact that the rule itself provides that the question depends on whether the new cause of action "arises out" of the same or substantially the same facts, whereas the commentary on which the Appellant relies uses the words "is supported". It seems to me immaterial which test you apply. If you apply the "arising out of the same facts" test, the Appellant succeeds; if you apply the "supported by the same facts" test, the Appellant also succeeds. To look at it from the "arising" aspect, the account stated arises out of a claim for a sum of money which is said to have been admitted. The claim for work done and materials supplied arises out of the work done and materials supplied. The facts are quite different. If you look at it from the "support" point of view, the particulars which are now in paragraph 2, and which are no longer objected to, do not "support" the action for the account stated. What they do is merely to define and identify the material which makes up the account stated. 5. This conclusion seems to me to be in accord not only with the law but in accord also with logic and justice, because by seeking to include in the circumstances of this case a claim for work done and materials supplied the Plaintiff is seeking to get in by the side door matters which are statute-barred at the front door. For these reasons, in my view, the appeal should be allowed and paragraph 3 of the Re-amended Statement of Claim should be removed. Huggins, J.A. : 6. I agree. It seems to me the point is high-lighted by the fact that the Appellant originally sought to strike out also paragraph 2 of the Re-amended Statement of Claim. I ask myself Why is it necessary that most of the facts which are there pleaded have to be pleaded? as I am satisfied they do, and it is, in my judgment, solely to identify the account stated. I think that Mr. Tang is right when he says that one is not required to find out whether the two causes of action arise out of the same "history", as he described it. The account stated, it is true, would never have been stated if there had not been the contracts for work and materials, but that does not seem to me to have the result that these two causes of action arise out of the same or substantially the same facts, and I also would allow this appeal. Yang, J. : 7. I, too, would allow the appeal, and I have only one or two things to add. 8. If one looks at 0.20 r.5(5) and applies the rule to the facts of this case, it may well be argued that the account stated as a cause of action arises out of the account whereas the action on work done and materials supplied as a cause of action arises out of something that happened before the account stated and at the time when the work was done and the materials supplied. 9. There is no dispute as to the inclusion of paragraph 2 of the amended Statement of Claim and I would have thought myself that as particulars, paragraph 2 gives more information than is necessary. For my part, I think that if only sub-paragraph (1) and sub-paragraph (7) of paragraph 2 are included, that would have been sufficient to identify the accounts in question. 23rd November 1979. |