Astral Land Pty Ltd v Wellington Parkland Pty Ltd
[2013] WASC 177
•9 MAY 2013
ASTRAL LAND PTY LTD -v- WELLINGTON PARKLAND PTY LTD [No 2] [2013] WASC 177
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 177 | |
| Case No: | CIV:2518/2011 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 9/05/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | ASTRAL LAND PTY LTD LIAS ARIPIN WELLINGTON PARKLAND PTY LTD LUAN MAY WONG |
Catchwords: | Practice and procedure Strikeout application Minute of pleading Implication |
Legislation: | Nil |
Case References: | Astral Land Pty Ltd v Wellington Parkland Pty Ltd [2012] WASC 273 Astral Land Pty Ltd v Wellington Parkland Pty Ltd [2012] WASC 273(S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
LIAS ARIPIN
Second Plaintiff
AND
WELLINGTON PARKLAND PTY LTD
First Defendant
LUAN MAY WONG
Second Defendant
Catchwords:
Practice and procedure - Strikeout application - Minute of pleading - Implication
Legislation:
Nil
(Page 2)
Result:
Application granted
Category: B
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
First Plaintiff : DLA Piper Australia
Second Plaintiff : DLA Piper Australia
First Defendant : Bennett & Co
Second Defendant : Bennett & Co
Case(s) referred to in judgment(s):
Astral Land Pty Ltd v Wellington Parkland Pty Ltd [2012] WASC 273
Astral Land Pty Ltd v Wellington Parkland Pty Ltd [2012] WASC 273(S)
(Page 3)
1 KENNETH MARTIN J: By an amended minute of proposed orders of 18 March 2013 the defendants bring a further strikeout application - this time against the plaintiffs' minute of substituted statement of claim (filed 1 February 2013) ('the MSSOC'). According to the defendants' amended minute of application at par 1, the strikeout challenge is now directed against pars 22A, 22B, 28A and 28B and proposes that 'all consequential references in the balance of the plaintiffs' minute of substituted statement of claim be disallowed'.
2 The parties are agreed I should determine this further pleadings challenge on the papers. To that end, the parties filed respective written submissions, namely:
(a) the defendant's written submissions of 25 March 2013;
(b) the plaintiffs' responsive submissions of 28 March 2013; and
(c) defendants' reply submissions of 8 April 2013.
3 Before explaining the latest pleading grievance as articulated by the defendants, it is necessary to set out pars 22A and 22B, which contain so-called 'Second Representations'. Paragraphs 28A and 28B are similarly constructed as regards what are the 'Third Representations'.
4 It is also necessary to set out preceding par 22 and subsequent par 23 so the context for pars 22A and 22B is apparent.
5 These pleas concerning the Second Representations in the MSSOC are as follows:
Second Representations
22 In or about early June 2006, Steven Tay ('Tay') the General Manager of a group of companies controlled by Wong which included the First Defendant on behalf of the First Defendant and on behalf of, and with the knowledge of, Wong, represented to James Aripin on behalf of the First Plaintiff that the First Plaintiff's payment of $1.4 million to the First Defendant ought not to have been made to the First Defendant, and ought instead to have been paid to Wong, and that this should be rectified by:
(a) the First Defendant issuing a cheque to the First Plaintiff for $1.4 million; and
(b) the First Plaintiff then paying $1.4 million to Wong, by way of Wong's personal bank account with BankWest.
(Page 4)
- 22A The statements pleaded in par 22 hereof impliedly represented that:
(a) the payment by the First Plaintiff to the First Defendant had been made in error;
(b) it was necessary in the First Plaintiff's interests that the error be corrected.
(The Second Representations)
(a) the payment made by the First Plaintiff had not been made as a consequence of any error, but had been paid in accordance with Wong's instructions; and
(b) it was not necessary in the First Plaintiff's interests that the payment of $1.4 million made by the First Plaintiff to the First Defendant be paid to Wong rather than the First Defendant.
23 The First Plaintiff, induced by and in reliance on the First Representations and on the Second Representations:
(a) on about 6 June 2006, accepted a cheque from the First Defendant in the amount of $1.4 million; and
(b) the next day issued a cheque for $1.4 million, payable to Wong, which was handed to Tay on Wong's behalf.
7 It is apparent an excision of offending words 'in the first plaintiff's interests', can be seen now, at pars 22A(b) and 22B(b) properly giving effect to my 18 January 2013 reasons at [21], where I said:
But my assessment is that it crosses the line of credulity to go on to assert that there is a basis for the further implication that to correct the error was 'in [Astral's] interest'.
8 See also [22] as regards a (now properly excised) phrase 'necessary in [Astral's] interests'.
9 The current challenge is, bearing in mind the prior pleading disputation, relatively minor and largely residual in character. It can be
(Page 5)
- gleaned from par 4 of the defendant's submissions of 25 March 2013, under the heading 'essential flaw in the pleadings'. Paragraph 4 says:
The essence of the pleading lies in a plea relating to falsification of the implied representations. In 22B, it is said that the Second Representations were false in that the payment had been made by the First Defendant in accordance with instructions and not as a consequence of any error. This simply is not falsified. Looking at the representations plea in par 22, it is plain that Mr Tay was not saying to Mr James Aripin that the payment had been made through an inadvertence or error on the part of Astral Land. He is saying that the payment was directed to the wrong person. The short point is that there is nothing against the implied representation being that - the instruction was the error, not the act of payment. Accordingly, it is not falsified by saying that the payment was paid in accordance with instructions.
11 What is immediately apparent as regards the present pleading of Second and Third Representations, is that the pleas address what is said to be an implication. Hence, the preface to par 22A, which refers to what statements in par 22, 'impliedly represented'.
12 An implied representation contended for by par 22A(a), is as to the making of an asserted error. The error is said to have been (by implication) in relation to a payment of $1.4 million by Astral Land Pty Ltd to Wellington Parkland Pty Ltd (referred to in par 16 of the MSSOC as having been made on or about 18 August 2005). But nothing is pleaded about who is said to have made the error at the time of the payment - namely as at or about 18 August 2005.
13 Paragraph 22 at (a) and (b) addresses that 2005 payment on the basis it, 'ought not to have been made to [Wellington Parkland Pty Ltd] and should be rectified': see reference to 'ought instead to have been paid to Wong'.
14 The short point of the defendants' challenge is to contend that the implication contended for, namely a (false) representation of an error being made in the 2005 payment of $1.4 million to Wellington Parkland Pty Ltd rather than to Mrs Wong, is not arguable as to such error.
15 It is difficult to evaluate this challenge in circumstances where the MSSOC does not with any clarity or at all, even say who is contended to have made the represented error. Was it the payor (Astral Land Pty Ltd), the payee (Wellington Parkland Pty Ltd), or both, or possibly even
(Page 6)
- someone who gave an instruction to the payor, at or about 18 August 2005?
16 The defendants' point is also that there is a vital distinction between a payor making a payment in error and an error of a distinct kind, namely, error in a payment instruction - which presumably was given at or around 16 August 2005. The nature of the distinction as between an error concerning making payment as contrasted to an error in or concerning an instruction to pay, may at a distance seem a very fine distinction. But I accept that in the unique circumstances of the present case that distinction is fundamental, as regards evaluating both the Second and the Third Representations. This is particularly so in circumstances where both the Second and Third Representations are said to be wholly derived by implication.
17 This grievance may have been approached within the arguments ventilated on 7 November 2012. But it appears to have been subsumed, at least on my assessment, by more significant arguments requiring resolution at that time concerning difficulties with the (now excised) phrase 'in the first plaintiff's interests' in pars 22A(b) and 22B(b). The present grievance has not been evaluated to date.
18 The primary vice looks to lie in a failure of the pleading to identify the party or parties contended to have erred. Once that information is provided, controversy over whether the error was in an instruction, or in the making of the payment by the payor at the time should hopefully subside, delivering some ancillary clarity. With the present pleading raising pleas of asserted fraud and sham transactions, that missing clarity is very necessary. I repeat the observation at [23] in my reasons [2012] WASC 273(S), where I said:
In circumstances where these representations feed into and support very serious argued contentions as to fraud by common law deceit … this type of confused and diverting plea cannot stand.
19 In their responsive written submissions the plaintiffs seek to defend the MSSOC, at pars 10, 11 and 12. It is said:
10. The error alleged in SOC, [22A], is obviously a reference to the initial instructions by Wong for Astral to pay Wellington Parkland. The defendants understand this, as their submissions say, at [4], that 'the instruction was the error'.
20 I do not assess that interpretation of par 4 of the plaintiffs' submissions as accurate. I have set out par 4 above. Read correctly I
(Page 7)
- think it makes a point that the pleading refers to the payment being impliedly said to have been made in error, but that this contended implication is not justifiable because it might equally be contended that the instruction concerning payment was in error and 'not the act of payment'.
21 The plaintiffs' submissions continue:
11. The implied implication of an error in Wong's initial instructions is then falsified by the allegations in SOC [22B]. It is alleged that the payment was not made as a consequence of any error, ie any error in Wong's initial instructions. See SOC, at [22B] (a). It is also alleged that the payment was made in accordance with Wong's instructions, and that it was not necessary (at the time of the instructions) that the payment made by Astral to Wellington Parkland should in fact be made by Astral to Wong. See SOC, [22B] (a) and (b).
12. In substance, it is alleged that Wong did not initially make any error at the time of her instructions. In other words, what happened is that she introduced the first round robin transaction in order to suit her circumstances after the initial instructions were given.
22 I note what the plaintiff contends about its case in substance, under par 12. Regrettably, its pleading as currently formulated does not say that in clear enough terms. It is open to a different interpretation which has given rise to the present disputation. The issue is capable of being, I would have thought, speedily clarified by a further amendment to reflect what is the substance of the case sought to be pursued by the plaintiffs. I will, in the circumstances, uphold the defendants' current pleading challenge.
23 Similar considerations apply in respect of the Third Representations at pars 28 and 31 of the MSSOC.
24 Because the plaintiffs' pleading is only a minute, it is not strictly necessary for me to formally strike out these paragraphs. I merely decline to allow the plaintiffs leave to amend in accordance with that MSSOC, until this conceptual deficiency is remedied.
25 I will allow the plaintiffs 14 days in order for the required corrective amendments to that end, to be made. Hopefully, that will see the end to the pleading disputation which has bedevilled the progression of this matter and the allied action concerning Astral Land Pty Ltd and Golden Commercial Pty Ltd.
(Page 8)
26 The application has been determined on the papers, eliminating the cost of an inter parties formal hearing. To the extent some legal costs have been incurred, they should be awarded on a taxed basis to the successful party, namely, to the defendants.
27 The parties' solicitors should now confer as to appropriate orders in light of these reasons and optimally produce a consent minute giving effect to any reasons within 14 days. Otherwise, in an absence of agreement, the defendants should submit a proposed minute of orders after seven further days.
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