Attards Transport Services Pty Ltd v RSM Crane Sales and Hire Pty Ltd - [2010] WADC 50

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: ATTARDS TRANSPORT SERVICES PTY LTD -v- RSM CRANE SALES & HIRE PTY LTD [2010] WADC 50

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 7 APRIL 2010

DELIVERED : 16 APRIL 2010

FILE NO/S: CIV 292 of 2008

BETWEEN: ATTARDS TRANSPORT SERVICES PTY LTD
Plaintiff
AND
RSM CRANE SALES & HIRE PTY LTD
Defendant

Catchwords:

Practice – Western Australia – Practice under the Rules of the Supreme Court of Western Australia – Question of proposal to amend writ to add a party and to amend statement of claim

Legislation:

Nil

Result:

As to amendment question answered in the negative

Representation:

Counsel:

Plaintiff: Ms H K Nore
Defendant: Mr W G Spkyer

Solicitors:

Plaintiff: Cullen Babington Hughes
Defendant: Cornerstone Legal

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

Nil

DEPUTY REGISTRAR HARMAN: The proceedings have reached the point indicated by the fact that they were recently rendered no longer inactive.
On 25 March 2010 the question whether the plaintiff can amend the writ and statement of claim was assigned a hearing. Whether it was the intention of the court that the issue would proceed to hearing without a formal application I do not know. Be that as it may, the question had been assigned to a specified date for hearing. On the day neither party addressed any submission in relation to the point. Perhaps in light of the order of 25 March 2010 it remains to be stated that the effect has been that in circumstances where a filing fee would be payable no filing fee has been paid.
As I read the context, in each case, in the event that I found in the affirmative, I would have been satisfied that the plaintiff had established that it would be entitled to a grant of leave. As I understand the test in relation to the proposed pleading it is that the minute of proposed amended statement of claim be a sufficient pleading.
The first amendment the subject of contention is that proposed at par 3 of the minute. As the pleading presently stands the plaintiff contends for an agreement between the parties "made in or about 16 March 2007 or 12 May 2007". It proposes to assert that the agreement was "made in or about 27 March 2007 and confirmed on 19 April 2007 and on 12 May 2007". The defendant submitted that inclusion of the reference to confirmation is confusing. The plaintiff accepted that the relevant words were unnecessary but nonetheless sought to so amend.
A proper assessment is made on the basis of the context. One feature of the context is the allegation at par 3 of the defence that "on or about 27 March 2007 the plaintiff entered into a contract whereby the plaintiff agreed to buy and the defendant agreed to sell …". Another is that throughout par 3 of the pleading the plaintiff alleges events on dates both preceding and succeeding 27 March 2007. The plaintiff advanced no useful case in the application for pleading confirmation.
In my opinion it is appropriate to consider that the words do not constitute an allegation of material fact however whilst they remain they provide scope for uncertainty. There is no proper basis to grant leave to so amend.
It was evident that the defendant would have some related difficulties with the plaintiff's existing pleading but that issue was not before me for determination.
The next issue taken with the proposed amendments is at par 6 by which the plaintiff presents a claim under the Sale of Goods Act 1895 (WA).
As I understand the defendant's contention it is that there is no allegation that the specification sheet related to the crane the subject of the agreement. As the plaintiff proposes that the sale was by description, absent such an allegation it follows that par 6 must fail the test of a grant of leave. That is so simply because there would be no justification for requiring the defendant to bring an application upon which it would carry the onus. The defendant is entitled to now know whether the plaintiff intends to assert such a relationship. Nothing useful was forthcoming from the plaintiff.
The next contested proposal is at par 17 of the minute, at which the plaintiff asserts that by the specification sheet and other means it was misled into believing the crane had certain characteristics. It proposes that the defendant breached s 51A of the Trade Practices Act 1974 (Cth).
As to the particular statutory provision, there is no scope for a claim of breach. The balance of the defendant's submissions addressed the prospect that the plaintiff had intended to specify s 52 of the Act.
The plaintiff seeks to draw on previously pleaded documents and conversations in support of the conclusion that it was misled. However, as it is pleaded, some of those communications were after the date of the contract. A further difficulty with the proposal is that at par 19 the plaintiff seeks to put an unspecified case (or cases) along with the particular case.
In my opinion the defendant is entitled to specification of the representations upon which the claim is founded and some clarity as to what is contended at par 19.
There are further issues with the claim of statutory breach. Paragraph 21 is said to draw on par 22 but I appreciate that was not intended. Although not the subject of internal amendment, par 20 now falls within the scope of the statutory plea. The reference that it makes to par 3.2(c) to par 3.2(e) is to events that transpired after the agreement and could not relate to the claim. Otherwise the pleading is insufficient as there is no allegation of reliance.
As to the proposed claim against the second defendant, at par 26 of the minute the plaintiff asserts that he was a person within the meaning of s 75B of the Trade Practices Act. By s 75B a relevant person is defined by reference to contravention. At par 27 and par 28 the plaintiff proposes that the second defendant breached s 51A and s 52 of the Act. Each of those provisions is expressed to apply only to a corporation.
In each of the first three cases put under par 27 the plaintiff pleads that the second defendant represented matters recklessly and without caring whether they were true or false. That style of pleading would accord with breach of s 75B, but as I have noted, the breach alleged is of s 51A. In the last case the plaintiff does not plead recklessness or want of care. In par 28 the plaintiff pleads the second defendant's knowledge. That limitation on the scope of the allegation was made at the hearing. The minute had recorded a further allegation that the defendant ought to have known some specifications on the basis that he could have confirmed the specifications from the crane in his possession. It seems to me that if the allegation of constructive knowledge is removed then it should follow that the basis for that allegation should also be removed. The plaintiff did not accept that proposition. In my opinion it ought to be removed.
It follows that to the extent that I have dealt with the proposed amended pleading the question should be answered in the negative.
I was not addressed in relation to the proposed amended writ.