A James Pty Ltd v Westpac Banking Corporation

[1989] FCA 429

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JUDGMENT NO. ... 522 .'/...,B! i::

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IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	), QLD G7 of 1989
GENERAL DIVISION	1

BETWEEN: A. JAMES PTY LTD

First Applicant

AND: GENERAL ESTATE CORPORATION PTY LTD

Second Applicant

AND: PHILIP STUART CHURVEN

Third Applicant

AND: SYBIL MARGARET CHURVEN

Fourth Applicant

AND: PAMELA MARGARET WILSON

Fifth Applicant

AND: DAVID BENJAMIN SMITH

Sixth Applicant

AND: WESTPAC BANKING CORPORATION

Respondent

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MINUTES OF ORDER

RECEIVED

JUDGE MAKING ORDER: .	PINCUS J -	.	.
DATE OF ORDER:	31 JULY 1989
WHERE PViDE:	BRISBANE
THE COURT ORDERS THAT:	, .
.	.,

1.    the further amended statement of claim be filed;

2.    paragraph 36 of the statement of claim be amended so as to include within it an explanation of what was misleading about the advice given in paragraph

28(iv);

3. paragraph 34 of the statement of claim be amended; 1-

the applicants have leave to amend paragraphs 30 to

33 of the statement of claim;

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particulars of paragraph g(£) be given;	t-.
the amended statement of claim and further
particulars be filed and served on or before 14	C 1 ..
,
August 1989;	I . . .
the defence and cross-claim, if any, be filed and served on or before 28 August 1989;
a reply and answer be filed.and served on or before 11 September 1989;
mutual discovery be given on or before 2 October 1989;
inspection take place on or before 16 October 1989;
the matter be set down for further mention on Thursday, 19 October 1989 at 9.15 a.rn., and that nothing else be set down before 10.15 a.m. on that day;

12.   the costs of today be the respondent's costs in any event.

- NOTE : Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

QLD G7 of 1989

BETWEEN: A. JAMES PTY LTD

First Applicant

AND: GENERAL ESTATE CORPORATION PTY LTD

Second Applicant

AND: PHILIP STUART CHURVEN

Third Applicant

AND: SYBIL MARGARET CHURVEN

Fourth Applicant

AND: PAMELA NARGARET WILSON

Fifth Applicant

AND: DAVID BENJAMIN SMITH

Sixth Applicant

AND: WESTPAC BANKING CORPORATION

Respondent

PINCUS J . 31 JULY 1989

EX TEIqPORE REASONS FOR JUDGMENT

This is a directions hearing at which some complaints have been made about the statement of claim and particulars thereof. The matter was last before me with respect to that point on 7 June 1989, when I delivered reasons and made an order. The order contemplated that the statement of claim would be delivered

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by 28 June. In fact, that has not occurred, but I have been supplied with a further amended statement of claim which has been signed by the solicitors and I order that it be filed.

The parties are in dispute as to the adequacy of the particulars that were supplied and, to some extent, as to the comprehensibility of the pleading which has been extensively amended. I have received considerable assistance from counsel, but I must say that it is unfortunate that the amendments to the applicants' pleading were apparently drawn by counsel other than Mr David Cooper, who has the brief. It may be that that is a difficulty, because the new counsel, whatever his merits, did not seem to have precisely the same ideas about the case as Mr Cooper has.

The respondent bank makes a complaint about a number of matters. It says that para.g(e) is not sufficiently particularised. It complains of a representation that certain interest savings would be made and the assertion made by Mr Morrison, on behalf of the bank, is that the explanation of that, which is at p.22 of the new pleading, is inadequate.

I hold a contrary opinion, that is, it appears to me to be comprehensible that the applicant wishes to say that the interest savings which were promised were unlikely to be available because of the circumstances set out in paras. 1, 2 and 3 on p.22.

Mr Morrison says they are all future matters. In a sense they are, but, to take the second one as perhaps the simplest example, it says all interest would be a full tax deduction. It is true that that is a future matter in one sense, but in anothr it was clearly a present matter, a factor then operating. So I do not agree with the complaint about 9(e) and its particularisation.

The next complaint which is made concerns paragraph 28(iv), which says that on a particular date advice was given that the first and second applicants should enter into certain contracts. Paragraph 36 says that the representation was wrong and it seems to say it was so "in that the contracts referred to did not achieve that result". That obviously does not make sense and it needs to be corrected. I think the simplest way to do it is to order, and I will order, that para.36 be amended so as to include within it an explanation of what it was that was misleading about the advice given in para.28(iv).

The next complaint which Mr Morrison makes on behalf of the bank is that paras.30 to 34 are a little obscure. I agree with the complaint and it is necessary to go into some detail to explain it. Before the recent amendment, para.34 seemed to say that certain foreign exchange dealings were entered into by the

bank on behalf of the applicants without authority and to raise	that as a separate .reason why those contracts could not produce
liability in the applicants. In its present form, the new para.34
does not really make it clear whether such a point is intended to be raised, but Mr Cooper says, and I accept, that it was intended to adhere to the old case in that 'respect. Paragraph 34 uses words which imply such a case, for example, complaint is intended to be made that these dealings were carried on without reference

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or sufficient reference to the applicants, and that imports a

notion of lack of authority.

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I	Paragraph 34 should be amended. It seems to me that the
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i	amendment would not be very complex. The case sought to be
I	I	advanced is, apparently, that certain contracts which the bank
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?	claims to have entered into with authority or pursuant to a contract with the applicants were in fact not so entered into, but were matters not binding upon the applicants, for two reasons,
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i	'> namely that just given, and secondly, because of the illegality. It therefore would be necessary to amend para.34 and I order that it be amended. It would be simpler if it were completely redrawn rather than that any surgery be done on it.

The other complaint which Mr Morrison makes (which is perhaps less important, but nevertheless seems to me to have some substance), is that paras.30 to 34 do not make it clear whether it is all of the transactions of this nature which the applicants say cannot bind it, or only some of them. He suggests, sensibly enough, that it may be that the applicantsr case is that only some

Morrison refers to para.34(a), which reads: should be simple enough for the applicants to make that clear. Mr of them, namely those that produced a loss, are attacked. It "The respondent claims to have entered into and conducted the operation of a number of such contracts."

That may imply that only some of them are attacked. It seems to me that to give the applicants maximum flexibility to clarify that and the other point, I should add paras.30, 31, 32 and 33 to the list of those which the applicants have leave to amend. I am not

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saying they all require amendment. Mr Cooper might, when he studies them, think that it could be advantageous to amend some of these other paragraphs to make the case absolutely clear beyond any argument, so I will give him leave to do that.

Apart from the difficulties I have mentioned already, Mr Morrison says that para.34(b) is obscure in that it is not clear what the word "rate" means. I agree with that criticism. I had taken it to mean foreign currency exchange rate, but it is not, on the face of it, clear that that is so and the amendment to para.34 should cover that point.

As to g(£), there does not seem to be much dispute. 13r Cooper said that the implication of my former reasons was that only certain parts of 36 need be particularised. Having looked at the reasons, I do not agree. I did in fact order particulars of

36. I think the applicants' solicitors were under the

misapprehension that I had made some different order or had given

of 9(f) have been given and they must be given. I will so order.	reasons other than those which I, in fact, gave. No particulars
They may not be very helpful to the respondent, but they must be the best particulars available.
The next question is the matter of delivery of defence. The matter is progressing slowly, in the sense that the application was commenced in February and the statement of claim is still in the process of amendment. I would like to see it moving faster. I am therefore going to fix dates for the amendment, particulars and the defence, and the understanding will be that the defence must be delivered whether or not the respondent is satisfied with the pleading. It is clear that the respondent's representatives can come to Court and make a further complaint about the pleading if they do not like the new version, and on that application they might succeed in getting their obligation to file a defence lifted. My intention is, under the order to be made, to have a fixed date for the defence, so that discontent with the applicants' amendment will not be an excuse for not filing the defence. They will have to come back to me, if they want the time extended, and not simply grant themselves further time.
I propose to allow a fortnight for the delivery of the amended statement of claim and the further particulars I have ordered. That will mean that the amended statement of claim and further particulars must be filed and served on or before 14 August 1989, and I will order that the defence and cross-claim, if any, be filed and served on or before 28 August 1989.
I order that a reply and answer be filed and served on or before 11 September 1989. I order that mutual discovery be given on or before 2 October 1989, that inspection take place on or before 16 October 1989. The matter can come before me again for further mention on Thursday, 19 October 1989 at 9.15 a.m. and I will direct that nothing else be set down before 10.15 on that day.
Subject to any further argument, the order for costs I have in mind is to make the costs of today the respondent's costs in any event. The result of that will be that whoever wins the case, the respondent will get these costs, but the respondent cannot tax them immediately. It will have to tax them when a general order for costs, or a further order, for taxation, is made. :

I	c e r t i f y that	t h i s and t h e s i x preceding pages are
a	t rue copy of	the reasons f o r judgment h a r e l n o f
l t i s Ilanour	Hr.	Jue tzce P incus .

Dated -31 d-J3 IVFq