4People Pty Ltd v Pocock - [2012] QDC 82

[2012] QDC 82

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2394 of 2011

4PEOPLE PTY LTD	Plaintiff
and
GREGORY KEITH POCOCK	Defendant

BRISBANE

..DATE 17/04/2012

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 150, r 166, r 171, r 293

Pleadings - attempt by defendant to defeat a claim by obtaining summary judgement or striking out of parts of the statement of claim, alternatively to get particulars - whether deficiencies in the defence amounted to deemed admissions

HIS HONOUR: The application before the court is one by the defendant seeking (1) leave to withdraw his admission of paragraph 30 of the statement of claim; (2) summary judgment on so much of the claim as relates to alleged solicitation of persons identified in paragraphs 29(c) to (f) of the amended statement of claim, alternatively, the striking out of those paragraphs under rule 171 and alternatively to that again, an order for further and better particulars of paragraph 9, including "(a) the date of each active solicitation alleged to have taken place by the plaintiff; (b) the means of each such solicitation; and (c) to the extent that any such solicitation involved any conversation the parties to that conversation and the words spoken in that conversation or the effect thereof."

The plaintiff purchased from the defendant or an entity of his a financial advisory business. Completion occurred on 1 December 2008, so that the restraint period of two years, as it is called, ran from that date.

There were at the time of the contract of purchase so-called "sale clients". The list of them was, it seems, omitted from the sale agreement but the defendant, the court is told, accepts that the plaintiff could probably obtain rectification to incorporate the list.

The plaintiff contends that the defendant acted in breach of the restraint. It seeks damages for breach of contract of nearly $175,000, damages in a sum of some $20,000 less under section 82 of the Trade Practices Act 1974 of the Commonwealth or section 99 of the Fair Trading Act 1989 of Queensland, the same amounts are being sought as compensation under sections 87 and 100 of those Acts, respectively.

Equitable compensation in an amount exceeding $330,000 is claimed. Likewise, an injunction restraining the defendant from initiating direct solicitation of any sale client or disclosing certain other matters. Equitable damages in the same sum as the equitable compensation are sought in lieu of the injunction.

The first item was not pursued. Paragraph 30 alleged that "the Solicited Clients are persons identified as Sale Clients in the Sale Agreement", an allegation specifically admitted in paragraph 1 of the amended defence.

Paragraph 29 of the amended statement of claim filed on 27 February 2012 alleges that "at a time to be further particularised following disclosure but, in any case, during the Restraint Period, the defendant initiated direct solicitation of the following persons for the purpose of providing Restrained Services." Six numbered paragraphs follow identifying clients, in some cases being couples, and a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 4People Pty Ltd v Pocock

Details

AGLC: 4People Pty Ltd v Pocock [2012] QDC 82
Case: [2012] QDC 82
Decision Date: 17 April 2012

CaseChat Overview and Summary

In the case of 4People Pty Ltd v Pocock, the plaintiff, a company, sued the defendant, a former employee, for breach of contract and other related claims. The plaintiff had purchased a financial advisory business from the defendant, and alleged that the defendant had breached a restraint period by soliciting certain clients. The defendant sought various forms of relief, including leave to withdraw admissions, summary judgment, and orders for particulars. The court considered the legal issues, including whether the defendant's pleadings amounted to deemed admissions and whether the plaintiff's statement of claim was sufficiently particularised. The court found that the defendant's pleadings did not amount to deemed admissions and that the plaintiff's statement of claim lacked sufficient particulars. The court ordered the plaintiff to provide further and better particulars, and made orders as to costs.

The court's reasoning was based on a number of factors. Firstly, the court found that the defendant's pleadings did not amount to deemed admissions, as they contained a direct explanation for the defendant's belief that the allegations were untrue. Secondly, the court found that the plaintiff's statement of claim lacked sufficient particulars, particularly in relation to the solicitation of certain clients. The court noted that the plaintiff had been given opportunities to provide better particulars, but had failed to do so. Thirdly, the court found that the defendant's application for summary judgment was premature, as there was insufficient evidence to determine the merits of the case. Finally, the court found that the plaintiff's failure to provide particulars meant that it was unlikely to be able to establish a case in relation to certain clients, and that the defendant should be compensated for the costs of the application.

Orders