Ardizzone v Valentino Nominees Pty Ltd [No 3] - [2016] WADC 64

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ARDIZZONE -v- VALENTINO NOMINEES PTY LTD [No 3] [2016] WADC 64

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 21 APRIL 2016

DELIVERED : 12 MAY 2016

FILE NO/S: CIV 987 of 2015

BETWEEN: JOSEPH ANTONINO ARDIZZONE
Plaintiff
AND
VALENTINO NOMINEES PTY LTD
First Defendant
JAMES COLBY
First-named Second Defendant
PAULA CHARMAINE COLBY
Second-named Second Defendant
CRI PROPERTY PTY LTD
Third Defendant
WALTER LA ROCCA
Fourth Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia 1971 - Application to strike parts of the pleading

Legislation:

Nil

Result:

Application successful

Representation:

Counsel:

Plaintiff:        Mr G Cobby SC
First Defendant               :        Mr P Edgar
First-named Second Defendant     :        Mr P Edgar
Second-named Second Defendant   :        Mr P Edgar
Third Defendant               :        No appearance
Fourth Defendant               :        No appearance

Solicitors:

Plaintiff:        Roe Legal Services
First Defendant               :        Fletcher Law
First-named Second Defendant     :        Fletcher Law
Second-named Second Defendant   :        Fletcher Law
Third Defendant               :        DLA Piper
Fourth Defendant               :        DLA Piper

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

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff and first defendant are parties to a contract for the sale and purchase of real estate.
The plaintiff claims that by the agreement the first defendant warranted that it knew of no demand, requisition, order or requirement relating to the property made by any governmental or statutory body in effect at settlement. He asserts that the defendant breached that warranty by failing to inform him of its receipt of a letter of the West Australian Department of Environment and Conservation by which it had been informed that:
(a)a substantial area of vegetation on the property had been classified as a threatened ecological community (TEC);
(b)TECs have a special level of legal protection under Western Australian law, particularly under the Environmental Protection Act 1986 (WA);
(c)special care should be taken of the area containing the TEC;
(d)the first defendant was required to apply for a permit pursuant to the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) before clearing any vegetation on the property, where doing so might affect the TEC present on the property; and
(e)if the first defendant chose to sell the property then the first defendant ought to inform any prospective purchaser of the existence and location of the TEC present on the property.
The defendant has filed a series of defences cumulating in its amended substituted defence dated 4 March 2016 which at the hearing of the plaintiff's application was the document addressed by counsel.
By his application the plaintiff seeks to strike out pars 8.6, 8.7 and 14.2(c) of the defence under the Rules of the Supreme Court 1971 O 20 r 19(1)(a), r 19(1)(b) and r 19(1)(c); alternatively O 18 r 6. He further seeks to have part of par 13 struck out under O 21 r 3(3).
In the course of the hearing the parties referred to the statutory scheme that provides for conservation of native species on alienated land. According to s 51B of the Environmental Protection Act 1985 the minister is empowered by notice to declare as environmentally sensitive areas parts of the state to which the provisions of the division of the Act of which it is part would apply. It is not disputed that such notice was given in April 2005 in which the minister specified that the term environmentally sensitive area would extend to an area covered by an ecological community that the minister determines to be a threatened ecological community and is referred to in the list of threatened ecological communities maintained by the chief executive officer of the department of which the owner had been notified. According to s 51(2), the notice of April 2005 has the status of subsidiary legislation. The expression 'threatened ecological community' is a term also used in sch 5 to the Act entitled 'Principles for clearing native vegetation' where it is defined for the purposes of the schedule as an ecological community 'listed, designated or declared under a written law …'.
The plaintiff produced the letter of the Department at the hearing. It is addressed to the defendant and headed 'Notification of the presence of a threatened ecological community on land you own'. It identifies 'areas of vegetation on the property classified as a threatened ecological community' by reference to the community, a description of its constituent vegetation and a map of the property upon which its approximate boundary is indicated.
Drawing upon the statutory framework, the plaintiff's case in the application is that upon receipt of the letter by the defendant the particular area of its property became an environmentally sensitive area for the purposes of div 2 of the Act.
By par 1 of its defence the defendant defines the letter of the Department as the Notice. At par 9 it denies pars 21 and 23 of the statement of claim by which the plaintiff asserts that he has suffered loss due to the constraints notified to the defendant in the letter. At par 8.6 it pleads as follows:
If, … the alleged Warranty extended to the disclosure of the Notice:
(a)the Notice is invalid in that it did not have the legal effect pleaded in paragraphs 21 and 23 of the [statement of claim] by reason that it was not issued as a consequence of a valid determination made by the Minister for Environment; …
Particulars
(A)[Subject to the matters pleaded in paragraph 8.6(b) any determination that the Vegetation constituted a [threatened ecological community] could be made only by the Minister.]
(B)[The Minister is not an authority for the purposes of the Contract.]
(C)The gazettal of a declaration by the Minister on 8 April 2005 as to environmentally sensitive areas did not constitute a determination that the Vegetation was a threatened ecological community.
(D)The map produced in connection with the Gazetted Declaration and with respect to the MKSEA did not identify the Vegetation as a threatened ecological community … .
Particular A is expressed to be subject to the matters pleaded in par 8.6(b). It is as follows:
[and] the Notice is invalid in that it did not have the legal effect pleaded in paragraphs 21 and 23 of the SOC because the Minister has no statutory power to determine that the Vegetation is a TEC.
Particulars
(A)By item 2 of schedule 5 to the Act a threatened ecological community means an ecological community listed, designated or declared under a written law or law of the commonwealth as threatened, endangered or vulnerable;
(B)The Vegetation is not an ecological community listed, designated or declared as threatened, endangered or vulnerable under any written law;
(C)The Vegetation is not an ecological community listed, designated or declared as threatened, endangered or vulnerable under any law of the Commonwealth; and
(D)Schedule 5 of the Act operates to specify the clearing principles and is not the source of power for the Minister to determine that the Vegetation is a TEC.
The term 'the Vegetation' used at par 8.6 is defined at par 3.1 of the defence as the vegetation the subject of the notice. Accordingly it is the threatened ecological community specified in the notice.
The question raised by the application is whether par 8.6(a) discloses a reasonable ground of defence. The allegation of material fact is confounded by the proposition that the effect of receipt of the letter pleaded by the plaintiff would determine its validity. It conveys nothing that is sensible. Otherwise, taking into account particulars A and B, it is not clear whether the defendant contends that the minister had made a relevant declaration. By particular A, (contrary to what is put at par 8.6(b)) it contends that the minister would be the sole decision maker. Particular A has no bearing upon the allegation of material fact. I take from B that it refers to the express term used in the agreement and that it puts the proposition that the determination was outside the scope of the warranty upon which the plaintiff relies. If that is the defendant's case then it is not a particular of the allegation at par 8.6(a).
Both of particulars C and D go to the declaration under which any relevant determination was made. As for the map identified by particular D, there is nothing in the statutory framework or determination under that framework that depends upon reference to a map. Part of the notice provided to the defendant included a map but it is not the map to which the defendant refers. Particulars C and D do not inform the proposition asserted at par 8.6(a).
In my opinion, as it is constituted par 8.6(a) ought to be struck from the pleading.
As to par 8.6(b), I make the same observation in relation to the confounding feature of the pleading. As for the proposition that the minister has no statutory power, it is not clear how any want of authority is conveyed by the particulars.
As for A, I have already referred to the reference in sch 5 of the Act to the term 'threatened ecological community'. My understanding of the relevant parts of the statutory framework is that the notification to the defendant by way of the notice was of a determination of a threatened ecological community under the declaration of environmentally sensitive areas made under s 51(b) of the Act. With reference to (B), the relevant determination was made under that declaration. It follows that the contentions at (C) and particular (D) are of no significance.
In my opinion, as it is constituted par 8.6(b) ought to be struck from the pleading.
Paragraph 8.7 of the defence is as follows:
Further or alternatively the Notice is invalid because it purports to notify a classification as having been made by the Department as to the Vegetation being a TEC whereas the Department has no such power.
There is no support for an allegation that only suggests that the Department had exercised power.
At par 14.2 the defendant pleads as follows:
… if the plaintiff has suffered loss or damage, … the plaintiff had a duty to mitigate his loss and take all reasonable steps to minimise his loss and the plaintiff has failed to:
(a)…
(b)challenge the validity of the Notice and/or the alleged classification of the Vegetation as allegedly a TEC.
Particulars
…
(F)In the circumstances pleaded at paragraph 9.2(b) above and/or paragraph 8.3 above and/or paragraph 8.6 above and/or paragraph 8.7 above, if the Department were to give proper consideration to those matters, it would be reasonably likely that the Department would withdraw the Notice.
Finally at par 13 the defendant pleads as follows:
… the first and second defendants deny that the first defendant would have negotiated the sale of the Property to the plaintiff at a discounted price different materially to the price payable pursuant to the Contract and say further that if the plaintiff had declined to proceed with the purchase of the Property pursuant to the Contract they would have retained, and continued to enjoy the benefits of, ownership of the Property including its increase in value subsequent to 22 March 2013.
In relation to each of pars 13 and 14.2(b) the plaintiff contends that each pleading is of recent origin and at this stage of the proceedings he is entitled to full particulars of each allegation.
As for par 14.2(b), in addition to that feature of the application, as I have already recorded pars 8.6 and 8.7 will be struck. Particular 14.2(F) draws upon the same proposition as that put in par 8.7 that the Department has the power to withdraw the notice. It is not supported by any pleading.
As for par 13, I understand that the plaintiff's submission is that the only explanation for the recent amendment must be the defendant's receipt of a valuation. In my opinion if the defendant seeks to so amend then at this point in the litigation the plaintiff is entitled to some detail.
Accordingly pars 13 and 14.2(b) will be struck.