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AED Oil Ltd v Back

AED Oil Ltd v Back

Case [2009] VSC 158 6 April 2009

Summary Judgment

Discovery & Disclosure

Breach of Contract

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT

No. 2001 of 2008

AED OIL LIMITED & ORS (according to the schedule attached)	Plaintiffs
and
ELIZABETH BACK & ORS (according to the schedule attached)	Defendants
AND BETWEEN:
MINTER ELLISON (a firm)	Plaintiff by Counterclaim
and
AED OIL LIMITED (ACN 110 393 292) and AED SERVICES PTY LTD	Defendants by Counterclaim

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JUDGE:	JUDD J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 and 6 April 2009
DATE OF JUDGMENT:	6 April 2009
CASE MAY BE CITED AS:	AED Oil Limited & Ors v Elizabeth Back & Ors
MEDIUM NEUTRAL CITATION:	[2009] VSC 158

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PRACTICE AND PROCEDURE – Application for summary judgement and to strike out pleading – Conspiracy to injure – Embarrassing – Failure to plead elements – pleading struck out – summary judgement refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C. Scerri QC Dr M. Collins	Corrs Chambers Westgarth
For the First and Fourth to Ninth Defendants	Mr D Collins SC Mr J Davis	Freehills
For the Second and Tenth Defendant	Mr P. Solomon	Herbert Geer

HIS HONOUR:

Introduction

On 2 and 6 April 2009 I heard applications by the first, second and fourth to tenth defendants to strike out the plaintiffs’ conspiracy allegations in paragraphs 94 to 109 of the substituted statement of claim dated 27 June 2008. The first and fourth to ninth defendants also applied for summary judgment against the plaintiffs in respect of their breach of contract claim in paragraphs 133 to 138 inclusive, although the relief sought in paragraph 138 is for repayment of overpayments by PDC Singapore.

The defendants’ summonses extend their attack beyond the paragraphs mentioned above to include paragraphs 80 to 80J and 110 to 117J. Alternative claims are made for particulars. The attack on paragraphs 80 to 89J fell away after the delivery of further particulars. These allegations are, however, the platform upon which the plaintiffs construct their claim for loss and damage resulting from alleged conspiracies to injure. The plaintiffs allege, against the first defendant, Elizabeth Back, breach of her contract of employment and duties owed to plaintiffs when recommending that they award a contract to the fifth defendant to undertake certain joint venture works.

The fifth defendant was known as Petroleum Development Consultants Pty Ltd and is described in the pleading as PDC Pty Ltd. PDC has undergone numerous name changes, it was the subject of a successful takeover by Back, the second defendant, Andrew Venables and others. That transaction lies at the heart of the plaintiffs’ case.

The parties agree that it was appropriate to deal first with the plaintiffs’ conspiracy claims as pleaded in paragraphs 94 to 109 and the summary dismissal application in relation to paragraphs 133 to 138.

The defendants also foreshadowed applications to have this proceeding transferred to the Supreme Court of Western Australia to be heard and determined with proceeding number CIV 2260 of 2007. PDC and the sixth defendant, a subsidiary of PDC, described…

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 AED Oil Ltd v Back

Details

AGLC: AED Oil Ltd v Back [2009] VSC 158
Case: [2009] VSC 158
Decision Date: 6 April 2009

CaseChat Overview and Summary

AED Oil Ltd sought summary judgment and an order to strike out the pleadings of Back, who was accused of conspiring to injure AED Oil Ltd by impeding its business. The dispute was heard in the Federal Court of Australia. The core legal issues were whether Back's pleadings contained sufficient elements to establish a conspiracy to injure and whether AED Oil Ltd was entitled to summary judgment and a striking out order.

The court held that Back's pleadings were inadequate as they did not properly plead the necessary elements of a conspiracy to injure, namely an agreement between two or more parties to commit an unlawful act that resulted in harm. Consequently, the court struck out Back's pleadings. Despite this, the court denied AED Oil Ltd's application for summary judgment because it was not satisfied that AED Oil Ltd would succeed on the merits of the case without a trial. The court determined that factual disputes remained unresolved, necessitating a trial to determine liability and damages.

The final orders of the court were that Back's pleadings be struck out and that AED Oil Ltd's application for summary judgment be dismissed. The case proceeded to trial to resolve the remaining issues.

Orders