A James Pty Ltd v Westpac Banking Corporation

[1989] FCA 288

JUDGMENT No. C? 8..%:t...-E

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	) QLD 67 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

MINUTES OF ORDER

JUDGE MAKING ORDER:  PINCUS J. 1 4 JUN 1989

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

FEDERAL COURT OF

DATE OF ORDER:	7 JUNE 1989	AUSTRAW
PRlNClPU

REQISTRY fi

WHERE MADE:  BRISBANE ~ >, .L. .-;?

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THE COURT ORDERS THAT:  - -.

1.   the applicants supply better particulars of the allegations in paragraphs 5(1), 8, 18, 29 to 34, 36, 41(a) and 42 of the statement of claim on or before 28 June 1989;

2.    the costs of the application for better particulars be the respondent's costs in the proceedings.

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	1
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

PINCUS J. 7 JUNE 1989

REASONS FOR JUDGMENT

This is an application for better particulars of the statement of claim. I propose to give the reasons in a summary form, that is, they are written on the assumption that the reader will have by him the statement of claim delivered on 13 February

1989. The requests for particulars will be discussed with

reference to the relevant paragraphs of the statement of claim.

Paragraph 4:  I see no necessity to give particulars of

the holding out, which is an alternative allegation, which would become relevant only if the authority of the three people mentioned is in issue.

Paragraph S(a): In my view, the applicants should set out as best they can the accounts being spoken of - i.e. the

branch, number and customer in each case.

Paragraph 5(c) : I see no necessity for further

particulars.

Paragraph 5(d) : The allegation seems to me clear enough. The superior position is said to arise from the "foregoing considerations", as is the position of influence and control.

Paragraph 6:  I can see no reason why details of the

advances are necessary at this stage; presumably they are set out

in the records of the bank and there is unlikely to be any dispute

about them.

Paragraph 7: In my opinion, there is no necessity to

give further particulars.

Paragraph 8: I am of the view that the applicants should give particulars of the alleged exertion of pressure - explaining briefly the nature of the communications relied on.

Paragraph 14: I see no necessity for further

particulars.

Paragraph 15(a): This is, to my mind, a request for particulars that should not have been made. It seems to me quite enough to say that at a meeting on a stated date, an identified person expressed annoyance about an identified subject. Further particulars are neither necessary for preparation of the defence nor for preparation for trial.

Paragraph 18: This implies, as Mr Morrison says, that it was the fact that the second applicant had no alternative but to comply. Although the point is marginal, it is my view that particulars of this allegation should be given. It might be the case, for example, that there was some particular reason why the second applicant could not refinance elsewhere.

Paragraphs 29-34:  It has been explained in

correspondence that these paragraphs set up an illegality, which

is not pleaded. Under the Rules of this Court, points of law may be raised by the pleading. Here, in my opinion, the applicants should give further particulars of the allegations in paragraphs 29 to 34 in that they should set out the nature of any illegality relied on. It appears to me that this would be convenient from the point of view of the Court and that of the respondent, focusing attention upon the legal question raised. Apart from

giving particulars of the nature of the illegality relied on, I do not think any further particulars of paragraphs 29 to 34 are necessary.

Paragraph 36: This is the most difficult question raised. It may be that the applicants cannot give a great deal of information by way of particulars of the assertion that certain representations were "wrong and were made without any basis for a belief that they were true". But the present situation in which the respondent is merely left to guess as to what the applicants1 case is on this subject appears to me unfair. To take but one example, in paragraph 12(c), a representation is set up that the respondent borrowed the amount required in foreign currency and then converted it into Australian currency. Presumably the applicants' case is that the bank's practice at the time did not accord with the representation, but the respect in which it did not do so is unstated. Some of the other allegations of

misrepresentation are even more mysterious - e.g. it is said that

the representation in paragraph 28(iv) was wrong; but that is merely an assertion that advice was given to the first and second applicants to enter into certain contracts.

Paragraph 37(b): I can see no necessity for further

particulars.

Paragraph 38(b): I can see no necessity for further

particulars.

Paragraph 41(a): The complaint made is that it is unclear whether the advice mentioned is identical with that alleged earlier in the pleading. Mr Mangano infotmed me that that is so. Further particulars should be given confirming the point.

Paragraph 42: The problem is similar to that just mentioned, that is, further particulars should be given confirming that the inequitable conduct referred to consists of no conduct other than that alleged earlier in the pleading; if any conduct other than that alleged earlier in the pleading is relied on, it should be particularised.

There remains the question of costs. I think the request for particulars was too extensive and went beyond what was reasonably necessary. On the other hand, the applicants' response was inadequate, particularly failing to give any detail of the falsity of the representations set up. The costs of the application for particulars will be the respondent's costs in the proceedings.

I have already ordered that an amended statement of claim be delivered and draw attention to the fact that it should carefully incorporate any foreshadowed amendments.

It will therefore be ordered that the applicants supply better particulars of the allegations in paragraphs 5(a), 8, 18, 29 to 34, 36, 41(a) and 42 on the statement of claim on or before 28 June 1989, and that the costs of the application for better particulars be the respondent's costs in the proceedings.	I certify that this and the four
preceding pages are a true copy of the reasons for judgment herein of His Honour Hr. Justice Pincus.

Associate

Dated 7 &C / 4 8 J