52/52 Pty Ltd v Robinson - [2011] WADC 94

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: 52/52 PTY LTD -v- ROBINSON [2011] WADC 94

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 15 JUNE 2011

DELIVERED : 30 JUNE 2011

FILE NO/S: CIV 2750 of 2010

BETWEEN: 52/52 PTY LTD
Plaintiff
AND
STEPHANIE ELIZABETH ROBINSON
Defendant

Catchwords:

Practice and procedure - Application to strike out defence and counterclaim - Turns on its own facts

Legislation:

Nil

Result:

Application successful in part

Representation:

Counsel:

Plaintiff: Mr M Atkinson
Defendant: Mr P S Bates

Solicitors:

Plaintiff: Atkinson Legal
Defendant: PSB Legal

Case(s) referred to in judgment(s):

Nil

DEPUTY REGISTRAR HEWITT: By a chamber summons filed on 20 April 2011 the plaintiff applied to strike out the defendant's defence and counterclaim in this action. The grounds advanced to support that outcome were:
1.(a) that it disclosed no reasonable defence;
(b)that it was scandalous, frivolous or vexatious;
(c)it might prejudice, embarrass or delay the fair trial of the action;
(d)that it was an abuse of the process of the court.
2.That the counterclaim be struck out on the same grounds.
The statement of claim alleges that in late 2006 or early 2007 the plaintiff and the defendant reached an agreement under the terms of which the plaintiff loaned the defendant the sum of $99,000 to assist her in the purchase of a piece of land at Two Rocks. It is said that the agreement contained terms that following settlement of the purchase of the property, the defendant would resell it promptly within three months and on sale would repay the loan amount and 70% of the profit achieved on the resale of the property.
The plaintiff alleges there has been a failure to honour the terms of the loan agreement and it sues for the amount of its loan together with damages.
Broadly speaking, the defence takes two tacks. The first proposition which appears to me to be embedded in the defence is that such contract as she entered for the advance of money for the purchase was with one Craig Simpson Turnbull in his personal capacity. Secondly, the defendant says that there are significant differences in relation to the agreement which she reached with Mr Turnbull compared to the contract described by the plaintiff to this action. In particular, the defendant alleges that there was no time stipulated for the resale of the property purchased and that the property has not been able to be sold for a profit due to the general decline of property values in the state generally and the area in particular.
I now turn from that general overview to the specifics of the case. Whilst there are deficiencies which I will later identify within the defence, it seems to me that it is not appropriate to characterise it as disclosing no reasonable defence. Nor is it appropriately described as scandalous, frivolous or vexatious. The defendant has put into issue the identity of the contracting parties and alleges that the plaintiff was not a contracting party. Likewise, she put in issue the fact that certain of the terms upon which the plaintiff relies were not a part of any contract relevant to the property.
There are however I feel a number of deficiencies within the defence which should be attended to and in making those comments I am aware of the fact that recent decisions of the Supreme Court have indicated its dissatisfaction with pedantic pleading points being taken in actions. The first point the defence has dealt with a series of allegations contained in the statement of claim. Those allegations are contained in pars 3 – 7. In regard to those paragraphs which contain a significant number of individual allegations the defence simply pleads pars 3 – 7 of the statement of claim are denied. The broad thrust of that denial is clear enough, notwithstanding the fact that as I understand the process of pleadings individual allegations should be separately traversed. The pleading does however cause a difficulty in regard to par 4 of the statement of claim. That paragraph alleges an agreement which was made between the plaintiff and the defendant at various meetings over various times which are identified within the paragraph. The paragraph concludes with the words '… and was evidenced by a document titled "Equity Partner Agreement" dated 18 January 2007 signed by Turnbull on behalf of the plaintiff and by the defendant'.
The difficulty which arises is it is not clear exactly what is being denied by the rolled up pleading which is contained within the defence. In particular it is not clear whether the defendant is denying the existence of the document or denying her signature to it, or denying that it is evidence of the agreement relied upon by the plaintiff. The matter is not helped by the amended pleading in the amended defence and counterclaim filed on 16 March 2011 which in par 1A refers to an alleged written agreement which represented the earliest time that the defendant could have learned of the existence of the plaintiff. The paragraph to my mind only adds to the confusion. There is no alleged written agreement, merely a document evidencing an oral agreement. The date coincides and par 1A and presumably refers to the document identified in par 4 of the plaintiff's statement of claim. The defendant is entitled to know whether it must prove the existence of the document and the authenticity of the plaintiff's signature to it or whether the defendant, while conceding the existence of the document and her signature to it, nonetheless contends that it did not in truth represent the agreement between the parties. In my view it is a matter that cannot be left up in the air and should be addressed.
As I have earlier stated, the defendant contends that such agreement as existed in relation to the purchase of the property, existed between herself and Mr Turnbull, not the plaintiff. To that end, in pars 5.1 – 5.7 contains a substantial amount of information about her relationship with Mr Turnbull in his capacity as an investment financial advisor trading under the name of Aspire Group and general information concerning her progress in the hierarchy of that group. In my view the whole of the information contained in 5.1 - 5.7 should be struck out. These are not material facts which are in any way relevant to the propositions advanced by the defendant in her defence. At the best they collectively explain why she made what appears to have been an unfortunate business choice in purchasing the properties in question. Paragraph 5.8 commences with the words 'under the auspices of aspire'. The paragraph goes on to say that under those auspices she placed deposits on certain pieces of land. I do not know what the words 'under the auspices of aspire' mean, nor I think, would the plaintiff know what those words mean. Whatever they mean, they are irrelevant to the case pleaded by the defendant. Therefore those words additionally will be struck out. The balance of the paragraph in my view is satisfactory. It explains the manner in which the contractual relationship which the defendant contends existed between her and Mr Turnbull came into existence and its purpose and terms.
The next matter which requires my consideration concerns par 10 of the defence. That paragraph concerns a request by the defendant for the plaintiff to lift a caveat which had been registered against the relevant property to allow its sale. The allegation is that the request was refused. Placed before me in the form of a letter exhibited to an affidavit is a copy of the relevant letter. It contains a number of paragraphs including a request to lift the caveat to permit the sale, information which is relevant background to the sale itself, and an offer to settle the action. It is contended by the plaintiff that the letter being marked without prejudice is privileged and cannot be relied upon by the defendant. I take the view that such privilege as attaches to the letter is the defendant's and she is entitled to waive it. In the event that I am wrong that the plaintiff is not entitled to waive the privilege in my view it can only attach to that portion of the letter which contains some attempt to negotiate a settlement. The balance in my view would not be so protected.
It follows that I am not inclined to interfere with the defence in regard to the point.
I now turn to the counterclaim. That appears to be in part at least based on the purported repudiation of the agreement between Turnbull and the defendant. In my view, such purported repudiation cannot give rise to a counterclaim in the face of a pleading as appears in par 15 of the defence 'In the premises, there has been no repudiation of the equity partnership agreement by the defendant and the equity partnership agreement is ongoing until such time as the property is sold'. The counterclaim deals with the possibility that a court might conclude that Turnbull had acted as an agent of the plaintiff. In my view there can be no consequence from a purported but ineffectual repudiation of a contract and therefore insofar as the defendant seeks redress for such repudiation it is not available. There may however be a prospect that the failure of the plaintiff to remove the caveat over the property did in some way constitute a breach, perhaps of an implied term that the plaintiff would not use its power to lodge a caveat to thwart a sale proposed by the defendant. In any event, the counterclaim is mingled with a number of different streams and I take the view that is the only one which is capable of giving rise to a claim for damages. Additionally the counterclaim seeks declaratory relief and injunctive relief, the general aim of which is to facilitate the sale of the relevant land.
In conclusion therefore, as indicated by these reasons, I consider there are deficiencies in the defence which require some parts of it to be struck out and other parts to be reworked. In particular, the counterclaim needs to be reworked in a manner consistent with these reasons.