Alabakis v Chatsworth Stirling Pty Ltd

[2000] WASC 256

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ALABAKIS & ORS -v- CHATSWORTH STIRLING PTY LTD [2000] WASC 256

CORAM:   MASTER SANDERSON

HEARD:   12 SEPTEMBER 2000

DELIVERED          :   12 SEPTEMBER 2000

PUBLISHED           :  18 OCTOBER 2000

FILE NO/S:   CIV 1437 of 2000

BETWEEN:   THOMAS ALABAKIS

IAN LLOYD
CHRISTOPHER ZIGOMALAS
Plaintiffs

AND

CHATSWORTH STIRLING PTY LTD (ACN 072 220 421)
Defendant

Catchwords:

Practice and procedure - Application for further and better answer to request for particulars of pleading - Turns on its own facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiffs:     Mr S Owen-Conway QC

Defendant:     Mr S Penglis

Solicitors:

Plaintiffs:     Godfrey Virtue & Co

Defendant:     Freehills

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

Nil

Case(s) also cited:

Angelopoulos v Sabatino (1995) 65 SASR 1

Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662

Baldry v Jackson [1976] 2 NSWLR 415

Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221

Cadorange Pty Ltd (In Liq) v Tanga Holdings Pty Ltd (1990) 20 NSWLR 26

Commissioner of State Revenue (VIC) v Royal Insurance Australia Ltd (1994) 182 CLR 51

Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353

Hill v Van Earp (1997) 188 CLR 159

Mt Gibson Manager Pty Ltd v Deputy Commissioner of Taxation (1997) 81 FCR 335

Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221

Pyramid Building Society (In Liq) v Scorpion Hotels Pty Ltd (1996) 136 ALR 166

1. MASTER SANDERSON:  This is the defendant's application for further and better answers to certain particulars that have been requested of the plaintiffs by the defendant.  No defence has been filed in this matter and prima facie the application falls foul of O 20 r 13(5) which is in the following terms:

   "Order under this Rule shall not be made before service of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason."

2. A request was made by the defendant of the plaintiff and there was a response.  It is the response which the defendant says is inadequate.  Given particulars have been requested and supplied and this is an application for further and better answers to that request, O 20 r 13(5) may not be relevant.  Be that as it may, I think that the policy behind that rule is two‑fold.

3. First, the rule is designed to ensure that a defence is filed and that the action generally is not held up by a request for particulars.  Secondly, and perhaps more importantly, the rule ensures that the issues are joined between the parties so that particulars are not sought of matters which are not in issue.

4. I think, with respect, in this case, there being no defence it is not entirely clear what the issues between the parties will be, and therefore the question of whether the particulars provided are adequate is made somewhat more difficult. 

5. The case itself is, as counsel for the plaintiffs described it, a success fee case.  But it is not a success fee case based simply in contract.  The claim is put first on the basis of a partnership between the plaintiffs and the defendant, as a consequence of which the plaintiffs say they are entitled to certain relief.  In the alternative, it is put as a claim for unjust enrichment.

6. The unjust enrichment claim can perhaps be described as an equitable success fee claim, that colloquial phrase, intending to give some idea of the way in which the plaintiff frames its cause of action. 

7. What I think is clear, though, is that it is a case where what the plaintiffs are claiming is a success fee.  Essentially they say that they undertook to do certain work and that if they were successful as a consequence of their efforts they were to be paid a certain proportion of the resulting fees. 

8. That being the case I think a detailed analysis of the work that they undertook is unnecessary for the plaintiffs to establish their case.  It seems to me that the provision of particulars which require a detailed analysis of the work that was undertaken is unnecessary.

9. The objections taken to the answers provided by the plaintiffs essentially go to that question.  The defendant is seeking detail of the work undertaken by the plaintiffs.  I am not satisfied that in the context of this dispute such detailed particulars are necessary.  The position might change once the defence is filed, although I have some doubt that that will be the case.

10. It is also an instance where the defendant is asking about information the plaintiff says was provided to it.  If it were provided with certain information, must know what that information is.  Once again, once a defence is filed to the extent that there is a difference between the plaintiffs and the defendant about what information was provided, then perhaps particulars might be appropriate. 

11. In any event, as matters stand at the moment I am not satisfied that I ought order the plaintiffs to provide any further and better particulars. 

12. There are two matters, however, I should deal with specifically.  First, there is one answer, and that is the answer to question 3(c)(2) which at present is unintelligible.  I think that requires a simple amendment so as to indicate that the reference is to a certain period of time with a particular date not known.  That answer ought be clarified.

13. Secondly, by par 11(c) of the statement of claim it is alleged that Alabakis collected information from the Turkey telephony market and furnished it to the defendant through Kenny.  Particulars were sought of that paragraph.  The answer referred to a report prepared by Price Waterhouse Coopers and detailed certain other material which was collected.  The defendants say that these particulars are inadequate.  It is apparent from the answer given that the information about Turkey was not required owing to the lack of immediate interest by Mobility GSM.  As was submitted by the plaintiff, it is difficult to see what further particulars could be provided. 

14. Subject to the answer to question 3(c)(2) being clarified, I think the appropriate order is that I should dismiss the defendant's application and, subject to what counsel may have to say, I think it appropriate the defendant pay the plaintiffs' costs of the application in any event.