Adam Toth Constructions Pty Ltd v Qiming Lu

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DISTRICT COURT OF QUEENSLAND

CITATION:

Adam Toth Constructions Pty Ltd v Qiming Lu [2022] QDC 132

PARTIES:

ADAM TOTH CONSTRUCTIONS PTY LTD

(ACN 613 632 296)

(plaintiff)

v

QIMING LU

(defendant)

FILE NO:

1776 of 2020

DIVISION:

Civil

PROCEEDING:

Applications

ORIGINATING COURT:

District Court

DELIVERED ON:

9 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

26 April 2022

JUDGE:

Dearden DCJ

ORDER:

(1)      Application granted.

(2)      Order the following paragraphs of the Statement of Claim filed 22 June 2020 be struck out:

(a)   paragraphs 3 – 8;

(b)  paragraphs 13 – 16;

(c)   paragraphs 17 – 23; and

(d)  paragraphs 24 – 25.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – whether Statement of Claim should be struck out in its entirety – whether specific paragraphs of the Statement of Claim should be struck out, in the alternative

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – PARTICULARS – FURTHER AND BETTER – whether further and better particulars should be provided in the alternative to striking out

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) rr 149, 157, 161, 171

CASES:

Bruce v Odhams Press Ltd [1936] 1 KB 697

Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218

NRNQ v MEQ Nickel Pty Ltd [1991] 2 Qd R 592

Saunders v James (1877) 7 Ch B 435

Thiess Pty Ltd v FFE Minerals Aust Pty Ltd [2007] QSC 209

Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213

Wooton v Sievier [1913] 3 KB 499
COUNSEL:

J R Moxon for the defendant/applicant

J Basson for the plaintiff/respondent
SOLICITORS:

23Legal for the applicant/defendant

Rostron Carlyle Rojas Lawyers for the plaintiff/respondent

Introduction

  1. This is an application by the defendant seeking the following orders:-

    1. That pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) and/or alternatively under the inherent power of the court, the Claim and Statement of Claim filed on 22 June 2020 be struck out in its entirety.

    2. In the alternative, that, pursuant to r 171 of the UCPR and/or alternatively under the inherent power of the court, the following paragraphs of the Statement of Claim filed on 22 June 2020 be struck out:

    (1)paragraphs 3 – 8;

    (2)paragraphs 13 – 16;

    (3)paragraphs 17 – 23; and

    (4)paragraphs 24 – 25.

    3. In the alternative to points 1 and 2 above, pursuant to r 161 of the UCPR and/or alternatively under the inherent power of the court, the plaintiff provide further and better particulars of the following paragraphs of the Statement of Claim filed on 22 June 2020:

    (1)paragraphs 3 – 8;

    (2)paragraphs 13 – 16;

    (3)paragraphs 17 – 23; and

    (4)paragraphs 24 – 25.

    4.   Directions for the further conduct of the proceeding.

    5.   The plaintiff pay the costs of and incidental to this application on the indemnity basis, alternatively on the standard basis.

    6.   Such further orders or directions as the court deems appropriate.

  2. The application is opposed…

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Details
Case
[2022] QDC 132
Decision Date

CaseChat Overview and Summary

Adam Toth Constructions Pty Ltd v Qiming Lu is a case involving a dispute between the plaintiff, Adam Toth Constructions Pty Ltd, and the defendant, Qiming Lu. The plaintiff alleges that the defendant, who was an employee from 7 May 2019 to 2 April 2020, misused confidential information to arrange sales to the plaintiff’s competitors, earning commissions for himself and depriving the plaintiff of certain profits. The defendant has moved to have the Statement of Claim struck out in its entirety, or in the alternative, certain specific paragraphs. The plaintiff has been ordered to provide further and better particulars. The court was required to decide whether the Statement of Claim should be struck out, whether specific paragraphs should be struck out, and whether further and better particulars should be provided.

The court found that the plaintiff’s Statement of Claim was deficient in several respects, as it failed to provide sufficient detail on key allegations, including the nature of the dealings with competitors, the definition of "leads," the specifics of the confidential information acquired and misused, and the nature of the improper use of position. The court also noted that the damages claimed for loss of opportunity and reputational damage were not quantified or particularised, and the plaintiff sought to reserve the right to quantify loss after disclosure and delivery of an expert report, which had not been provided. Despite the plaintiff’s efforts to provide disclosure, further and better particulars, supplementary disclosure, and other procedural steps, the court found that the Statement of Claim still lacked the necessary detail to enable the defendant to adequately respond.

The court struck out certain paragraphs of the Statement of Claim, as they were insufficiently detailed, and ordered the plaintiff to provide further and better particulars to address the deficiencies. The court held that the particulars should specify the mode by which the case would be proved, identify how the plaintiff would quantify its loss, and set out the whole of the plaintiff’s case. The court granted the defendant’s application and ordered that paragraphs 3-8, 13-16, 17-23, and 24-25 of the Statement of Claim be struck out. The court also ordered the plaintiff to provide further and better particulars within a specified timeframe.

In conclusion, the court found that the plaintiff’s Statement of Claim was insufficiently detailed and ordered that certain paragraphs be struck out. The court also ordered the plaintiff to provide further and better particulars to address the deficiencies in the Statement of Claim. The final orders of the court included the striking out of specific paragraphs of the Statement of Claim and the requirement for the plaintiff to provide further and better particulars.

Orders

Orders of the court

(1) Application granted.

(2) Order the following paragraphs of the Statement of Claim filed 22 June 2020 be struck out:

(a) paragraphs 3 – 8;

(b) paragraphs 13 – 16;

(c) paragraphs 17 – 23; and

(d) paragraphs 24 – 25.

Background

Background to the litigation

The function of particulars “… is to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial” [Bruce v Odhams Press Ltd [1936] 1 KB 697 [712]-[713] (Scott LJ].[5] In Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213, Daubney J identified that:-“… one of the specific functions of particulars is to limit the generality of the pleadings” [Saunders v James (1877) 7 Ch B 435].[6][5]Thiess Pty Ltd v FFE Minerals Aust Pty Ltd [2007] QSC 209 [35].[6]Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213 (Daubney J).Background The essence of the plaintiff’s case is that the defendant, who was an employee of the plaintiff from 7 May 2019 until 2 April 2020, misused confidential information to arrange for sales to the plaintiff’s competitors, and as a result, earned commissions for himself and deprived the plaintiff of a certain amount of profit.[7][7]Exhibit 1 – Submissions of the defendant [12]. The defendant identifies the following issues in respect of the plaintiff’s Statement of Claim namely:-1. In alleging that the defendant had “dealings” with particular “competitors” or “parcels of land,” the plaintiff fails to identify the meaning of the term “dealing,” how the dealing occurred, when it occurred and with whom it occurred;2. In alleging that the defendant failed to record “leads,” does not define what a “lead” is;3. Alleges that the defendant acquired and misused confidential information but does not explain what information was acquired or misused, how the information was confidential and the source of the obligation (whether in equity or in contract); and4. Alleges improper use of the defendant’s position with the plaintiff, without explaining how he did so in a way that was “improper.”[8][8]Exhibit 1 – Submissions of defendant [13]. In addition, the defendant identifies that the damages sought for loss of opportunity and reputational damage are not quantified, nor is the calculation process particularised, and that the plaintiff seeks to reserve the right to quantify loss after disclosure and delivery of an expert report (which was to have been filed and served by 22 October 2021) but which has still not been provided.[9][9]Order by consent dated 27 August 2021. The defendant also submits that the further and better particulars delivered by the plaintiff on 28 January 2022,[10] fails to indicate the mode by which the case will be proved, fails to identify how the plaintiff will quantify its loss, and does not set out the whole of the plaintiff’s case.[11][10]Further and Better Particulars of the Statement of Claim filed 28 January 2022.[11]Exhibit 1 – Submissions of the defendant [16]. It should be noted that the plaintiff indicates that it has given disclosure; provided further and better particulars; provided supplementary disclosure; obtained and enforced a series of costs orders; engaged an expert to prepare an expert report, going to the issue of quantum of damages suffered by the plaintiff; and proposed to mediate the proceedings.[12][12]Exhibit 2 – Plaintiff’s submissions [10].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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