AVWest Aircraft Pty Ltd v Bombardier Inc [No 2]
[2020] WASC 392
•3 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: AVWEST AIRCRAFT PTY LTD -v- BOMBARDIER INC [No 2] [2020] WASC 392
CORAM: ARCHER J
HEARD: 12 AUGUST 2020
DELIVERED : 3 NOVEMBER 2020
FILE NO/S: CIV 1636 of 2020
CIV 2450 of 2017
BETWEEN: AVWEST AIRCRAFT PTY LTD
Plaintiff
AND
BOMBARDIER INC.
Defendant
Catchwords:
Application to strike out parts of statement of claim - Alternative application for further and better particulars - Turns on its own facts
Legislation:
Nil
Result:
Application to strike out parts of statement of claim dismissed
Alternative application for further and better particulars upheld in part
Category: B
Representation:
Counsel:
| Plaintiff | : | K de Kerloy & A Sadler |
| Defendant | : | A C Willinge & C L Pedler |
Solicitors:
| Plaintiff | : | Herbert Smith Freehills |
| Defendant | : | Ashurst Australia |
Case(s) referred to in decision(s):
3meg.com Pty Ltd v TM & SM Pike Pty Ltd [2012] WASCA 128
Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Company Ltd [2008] WASCA 119
AVWest Aircraft Pty Ltd v Bombardier Inc [2018] WASC 139
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281
Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1
Bombardier Inc v AVWest Aircraft Pty Ltd [2020] WASCA 2
F & G Nominees Pty Ltd v Verdell Pty Ltd [2003] WASCA 290
Mayfield v P & B Corporation Pty Ltd [No 2] [2015] WASC 356
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; (2015) 329 ALR 1
Moratic Pty Ltd v Gordon [2007] NSWSC 5; (2007) 13 BPR 24,713
National Australia Bank Limited v Rowe [2018] WASC 330
Rowe v National Australia Bank Limited [2019] WASCA 140
Sze Tu v Lowe [2014] NSWCA 462; (2014) 89 NSWLR 317
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
Wilson v Arwon Finance Pty Ltd [2020] WASCA 137
ARCHER J:
Introduction
The defendant (Bombardier) made an application to strike out various paragraphs of the statement of claim in these proceedings, under O 20 r 19(1)(a) and/or (c) of the Rules of the Supreme Court 1971 (WA). Under those rules, the court has the power to strike out a pleading, or part of a pleading, if it does not disclose a reasonable cause of action or if it may prejudice, embarrass or delay the fair trial of the action. Bombardier also sought, in the alternative, an order that the plaintiff (AVWest) provide further and better particulars.
The theme of Bombardier's submissions was that it did not understand the case against it. Other than in some very limited respects, I do not accept that assertion.
Background
Bombardier is a manufacturer and seller of jet aircraft. AVWest has a business involving the purchase of jet aircraft manufactured by Bombardier for resale to third‑party buyers.
Between 2010 and 2015, AVWest and Bombardier engaged in extensive commercial dealings for the purchase of aircraft. In broad terms, AVWest made large up‑front payments of cash to Bombardier, and Bombardier sold aircraft to AVWest on generous terms, and undertook to find third‑party buyers for the aircraft and to facilitate the sale of aircraft by AVWest to those buyers. Bombardier would then pay AVWest net profits and other amounts paid by AVWest to Bombardier on account of the purchase price for the aircraft.
A dispute arose between AVWest and Bombardier, in which AVWest alleged that Bombardier had refused to perform its contractual obligations under numerous written agreements and alleged oral agreements.
The litigation that followed has an unhappy history.
AVWest sought, and was given, leave to issue a writ against Bombardier, and to serve the writ out of the jurisdiction. In September 2017, it duly served Bombardier at Bombardier's corporate headquarters in Quebec.
Bombardier filed and served a conditional appearance denying the jurisdiction of the Supreme Court of Western Australia to deal with the matters set out in the writ. It also applied for orders setting aside the grant of leave to issue and serve the writ, and the service of the writ, on it. Its application was dismissed on 8 May 2018 by Master Sanderson.[1]
[1] AVWest Aircraft Pty Ltd vBombardier Inc [2018] WASC 139.
Bombardier appealed that decision. The Court of Appeal dismissed Bombardier's appeal on 10 January 2020.[2]
[2] Bombardier Inc v AVWest Aircraft Pty Ltd [2020] WASCA 2.
The matter was admitted to my CMC List on 5 February 2020.
AVWest foreshadowed that it intended to amend the statement of claim to include, among other things, additional causes of action of estoppel by convention and promissory estoppel. AVWest also wished to commence proceedings to litigate claims that had arisen since the commencement of the proceedings. On 26 May 2020, I made orders in relation to the issue of the new writ and the consolidation of the two proceedings, with a single set of pleadings.
AVWest filed a consolidated statement of claim on 2 July 2020 (Consolidated Statement of Claim).
On 3 July 2020, Bombardier filed an application to strike out parts of the Consolidated Statement of Claim or, alternatively, for further and better particulars. On 21 July 2020, Bombardier amended the application.
In the amended application, Bombardier sought to strike out paragraphs 58, 67, 101 to 120 (estoppel by convention) and 121 to 135 (promissory estoppel) of the Consolidated Statement of Claim. In its alternative application, Bombardier sought further and better particulars in relation to a number of those paragraphs, as well as to paragraph 136(a).
On 10 July 2020, AVWest provided further and better particulars in relation to some of the paragraphs, albeit almost entirely over objection (Answers).
The strike out application was heard on 12 August 2020. During the hearing, counsel for AVWest agreed to make some amendments to the pleading and provide further particulars to address a number of matters in dispute, so that it would not be necessary to determine those disputes.[3] This was done on an entirely voluntary basis.[4]
[3] ts 216 ‑ 221, 293 ‑ 294.
[4] See ts 287.
Following the hearing, AVWest amended its pleading and particulars in accordance with that agreement. AVWest also drew the attention of the court and Bombardier to a decision of the Court of Appeal which had been delivered after the hearing - Wilson v Arwon Finance Pty Ltd.[5]
[5] Wilson v Arwon Finance Pty Ltd [2020] WASCA 137.
Following these developments, Bombardier confirmed that a number of its complaints had fallen away. These reasons deal with the remaining disputes.
Legal framework
A pleading must define the issues to be tried and disclose an arguable claim. This will provide the basis for determining what needs to be discovered and what evidence will be admissible. A pleading must also inform the other party of the case that has to be met. When determining the adequacy of a pleading, these purposes should be kept in mind.[6]
[6] See Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281 [4].
In Barclay Mowlem Construction Ltd v Dampier Port Authority,[7] Martin CJ observed that contemporary case management techniques and processes leave very little opportunity for ambush at trial. At the time Barclay Mowlem was decided, the evidence of witnesses was generally contained in a witness statement filed prior to trial. Now, the evidence is usually adduced orally. However, an outline of the evidence‑in‑chief of lay witnesses must be disclosed pre‑trial, reducing the risk of ambush to the same degree as a witness statement. In addition, in many cases in the CMC list, the parties will be required to identify, pre‑trial, the issues that will need to be determined by the trial judge.
[7] Barclay Mowlem [5] ‑ [6].
This does not mean that the need for proper pleading can be ignored. The pleading must still fulfil its basic functions.[8] A pleading will not, for example, inform the opposing party of the case it must meet unless it includes every material fact which, if not pleaded, might take an opposing party by surprise.[9]
[8] Barclay Mowlem [7].
[9] F & G Nominees Pty Ltd v Verdell Pty Ltd [2003] WASCA 290 [135], 3meg.com Pty Ltd v TM & SM Pike Pty Ltd [2012] WASCA 128 [73].
A pleading can, and should, fulfil those functions without including vast swathes of evidence or unnecessary particulars.
Order 20 r 8(1) of the Rules of the Supreme Court relevantly[10] provides (emphasis added):
… every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.
[10] It is subject to the other provisions of O 20 r 8 (including that a pleading must state the effect of any document or any conversation but not the precise words), and to r 11 (pleadings to be consistent), r 12 (law may be pleaded) and r 13 (must contain necessary particulars, particulars required of certain allegations, and court may order particulars).
In National Australia Bank Limited v Rowe,[11] Vaughan J[12] observed (citation omitted):
… the goal in O 1 r 4A of the Rules of the Supreme Court 1971 (WA) and the objects of O 1 r 4B are best achieved through conscientious adherence to O 20 r 8(1). Prolixity obscures identification of the true issues in contention and adversely impacts on the proper and efficient preparation of a case and its presentation at trial. …
The requirements of O 20 r 8(1) should be observed in preparing a pleading. Practitioners may do so confident in the knowledge that a summary statement of the material facts - and only such a summary statement - is what is required by the rules. The true significance of the case management authorities in this area is that it is unnecessary to encumber a pleading with unnecessary particulars, and all the more so evidence, as it is inevitable that there will be subsequent pre‑trial disclosure of the evidence to be adduced at trial.
A pleading must identify the issues, disclose an arguable claim or defence, and inform the parties of the case to be met. In doing so it should be clear and complete but concise. That standard is not met by over‑complicating the pleading with unnecessary particulars and evidence.
[11] National Australia Bank Limited v Rowe [2018] WASC 330 [4] ‑ [6].
[12] As his Honour then was.
These observations were endorsed by the Court of Appeal.[13]
[13] Rowe v National Australia Bank Limited [2019] WASCA 140 [15] and [165].
As noted in the introduction, Bombardier seeks to strike out various paragraphs of the statement of claim under O 20 r 19(1)(a) and/or (c) of the Rules of the Supreme Court. Under those rules, the court has the power to strike out a pleading, or part of a pleading, if it does not disclose a reasonable cause of action or if it may prejudice, embarrass or delay the fair trial of the action.
In Vantage Holdings Group Pty Ltd v Donnelly [No 4], Smith J said (citations omitted):[14]
[14] Vantage Holdings Group Pty Ltd v Donnelly [No 4][2019] WASC 398 [60].
(d)the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action. While the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial;
(e)in alleging no reasonable cause of action:
(i)the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action; and
(ii)'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable;
(f)the mere fact that a case appears weak is not of itself sufficient to strike out the action;
...
(i)pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general; and
(j)irrelevant or unnecessary pleas in a statement of claim will be struck out on the grounds that they will prejudice, embarrass or delay the fair trial of the action where the defendant must traverse the allegations and, thereby, raise false issues.
In view of Bombardier's submissions, there are two critical issues - whether the challenged pleadings disclose a reasonable cause of action and whether Bombardier knows the case it has to meet. Matters of form that do not impact on either of those two things are unlikely to support the exercise of a discretion to strike out a pleading.
Alleged legal deficiencies
Bombardier contends that the claims as pleaded do not address the legal requirements of the respective causes of action. Bombardier contends that AVWest's estoppel claims should therefore be struck out on the basis that they do not disclose a reasonable cause of action.[15]
Estoppel by convention
[15] See [14(a)] of Bombardier's submissions filed on 21 July 2020, titled 'Defendant's Outline of Submissions in Support of Application to Strike Out Parts of the Consolidated Statement of Claim Dated 2 July 2020 and/or for Further And Better Particulars of the Consolidated Statement of Claim' (Bombardier's Submissions).
In paragraphs 101 to 115 of the Consolidated Statement of Claim, AVWest pleads an estoppel by convention in relation to alleged common assumptions pleaded in paragraphs 110 and 111 (Common Assumptions).
In paragraphs 116 to 120 of the Consolidated Statement of Claim, AVWest pleads an estoppel by convention in relation to an alleged assumption regarding aircraft 7000 4 pleaded in paragraph 116 (Aircraft 7000 4 Assumption).
I will refer to these claims collectively as the 'Conventional Estoppel Pleading'.
Bombardier asserts that the Conventional Estoppel Pleading is deficient because it fails to plead what Bombardier says must be pleaded whenever such a cause of action is relied upon.
In Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Company Ltd,[16] Buss JA, with whom Steytler P agreed, said:[17]
[16] Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Company Ltd[2008] WASCA 119.
[17] Alpha Wealth [164]. See also [27] (Pullin JA).
I respectfully agree with Finn J's statement in GEC Marconi Systems [426] that, subject to one qualification, the elements of the doctrine of estoppel by convention are as summarised by the Court of Appeal of New Zealand in National Westminster Finance New Zealand Ltd v National Bank of New Zealand Ltd [1996] 1 NZLR 548:
'The authorities show that for an estoppel by convention to arise the following points must be established by the party claiming the benefit of the estoppel (the proponent):
(1)The parties have proceeded on the basis of an underlying assumption of fact, law, or both, of sufficient certainty to be enforceable (the assumption).
(2)Each party has, to the knowledge of the other, expressly or by implication accepted the assumption as being true for the purposes of the transaction.
(3)Such acceptance was intended to affect their legal relations in the sense that it was intended to govern the legal position between them.
(4)The proponent was entitled to act and has, as the other party knew or intended, acted in reliance upon the assumption being regarded as true and binding.
(5)The proponent would suffer detriment if the other party were allowed to resile or depart from the assumption.
(6)In all the circumstances it would be unconscionable to allow the other party to resile or depart from the assumption (550).'
The qualification is that, to the extent the proponent relies upon an assumption of law or an assumption of mixed fact and law, the assumption of law must relate to private legal rights. Relevantly, for present purposes, a common assumption as to 'private legal rights' includes a common assumption as to the effect of contracts or agreements.
Bombardier noted that the Conventional Estoppel Pleading did not plead each of the six elements identified in Alpha Wealth.[18] It did not plead:
(1)that the underlying assumption is of sufficient certainty to be enforceable;
(2)that acceptance of the assumption was intended to affect the parties' legal relations in the sense that it was intended to govern the legal position between them;
(3)that AVWest was entitled to act upon the assumption being true and binding; or
(4)that it would be unconscionable, in all the circumstances, to allow Bombardier to resile or depart from the assumptions.
[18] Bombardier's Submissions [17].
Bombardier submitted that, because the Conventional Estoppel Pleading did not plead the six elements, it therefore did not disclose a reasonable cause of action and should be struck out.[19]
[19] Bombardier's Submissions [18].
AVWest based its Conventional Estoppel Pleading on what was said by Brereton J in Moratic Pty Ltd v Lawrence James Gordon.[20] Brereton J said:[21]
In common law conventional estoppel, it is necessary for a plaintiff to establish (1) that it has adopted an assumption as to the terms of its legal relationship with the defendant; (2) that the defendant has adopted the same assumption; (3) that both parties have conducted their relationship on the basis of that mutual assumption; (4) that each party knew or intended that the other act on that basis; and (5) that departure from the assumption will occasion detriment to the plaintiff.
[20] Moratic Pty Ltd v Gordon [2007] NSWSC 5; (2007) 13 BPR 24,713.
[21] Moratic [32].
The Consolidated Statement of Claim expressly pleads each of these elements.[22]
[22] In respect of the 'common assumptions' claim, see [110] and [111] (elements 1 and 2), [112] (elements 3 and 4), [113] and [114] (element 5), and, in respect of the '7000 4 assumption' claim, see [116] (elements 1 and 2), [117] (elements 3 and 4), and [118] and [119] (element 5).
Brereton J's analysis has been adopted on a number of occasions.[23]
[23] See, for example, Sze Tu v Lowe [2014] NSWCA 462; (2014) 89 NSWLR 317 [431] (Gleeson JA, with Meagher and Barrett JJA agreeing) and Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; (2015) 329 ALR 1 [760] (Edelman J).
After the hearing, AVWest amended its pleading to include an allegation in each conventional estoppel claim to the effect that it would be unconscionable to allow Bombardier to resile or depart from the assumptions.[24] This disposed of Bombardier's complaint in relation to the element of unconscionability. However, Bombardier maintains its submission that the pleading does not disclose a reasonable cause of action because it still does not plead all of the six elements.
[24] See Further Amended Consolidated Statement of Claim filed 15 September 2020 [114A] and [119A].
AVWest submits that Alpha Wealth merely articulated the elements of conventional estoppel. It submits that a pleading is not required to slavishly follow the words used to express the elements. AVWest also submitted that there was not a material difference in the way in which the elements were expressed in Alpha Wealth compared to the way in which they were expressed in Moratic. AVWest points out that estoppel is part of the common law and there is no common law of Western Australia.
Alpha Wealth is binding on me. It plainly identifies the elements that must be proved. However, I do not accept Bombardier's submission that it prescribes what must be pleaded, still less the precise words that must be used.
In my view, this is demonstrated by the first of the elements which Bombardier asserts must be pleaded - namely, that the underlying assumption is of sufficient certainty to be enforceable. I do not accept this must be pleaded in order to disclose a reasonable cause of action. By way of analogy,[25] terms of a contract will only be enforceable if they are sufficiently certain. A statement of claim asserting a breach of contract will not be struck out if it does not plead that the term alleged to have been breached was sufficiently certain so as to be enforceable.
[25] See Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1 [3546].
My conclusion that Alpha Wealth does not prescribe what must be pleaded is sufficient to dispose of Bombardier's submissions on this topic. I am not satisfied that the Conventional Estoppel Pleading fails to disclose a reasonable cause of action. Whether there is a substantive difference between the elements expressed in Alpha Wealth compared to the way in which they were expressed in Moratic, and whether any such difference means that AVWest's case as pleaded cannot sustain a claim of conventional estoppel, are issues for trial.
Promissory estoppel
In paragraphs 121 to 128 of the Consolidated Statement of Claim, AVWest pleads promissory estoppel in relation to alleged assumptions it made, as pleaded in paragraphs 121 ‑ 122. These assumptions are pleaded in the same terms as the Common Assumptions pleaded in relation to the conventional estoppel claim[26] I will refer to them as the 'AVWest Assumptions'.
[26] In [110] and [111] of the Consolidated Statement of Claim.
In paragraphs 129 to 135 of the Consolidated Statement of Claim, AVWest pleads promissory estoppel in relation to the alleged Aircraft 7000 4 Assumption.
I will refer to these claims collectively as the 'Promissory Estoppel Pleading'.
Bombardier asserted that the Promissory Estoppel Pleading was deficient because it failed to plead that it would be unconscionable, in all the circumstances, to allow Bombardier to resile or depart from any of the alleged assumptions or expectations.
After the hearing, the Court of Appeal delivered Wilson v Arwon Finance Pty Ltd.[27] In Wilson,[28] the court confirmed that unconscionability was not a separate requirement, but rather derives from the establishment of the necessary criteria. In light of this decision, Bombardier indicated that it did not press its complaints about the failure of the Promissory Estoppel Pleading to include an unconscionability plea.
[27] Wilson v Arwon Finance Pty Ltd [2020] WASCA 137.
[28] Wilson [92] (Quinlan CJ and Vaughan JA).
Bombardier did not allege there were any other legal deficiencies in the Promissory Estoppel Pleading.[29] Accordingly, there is no longer any allegation of legal deficiency to determine.
[29] Although Bombardier continued to press paragraph 24 of its submissions, that paragraph related to both the Conventional Estoppel Pleading and the Promissory Estoppel Pleading and, in any event, did not raise any matter of substance.
Alleged factual deficiencies
Bombardier contends that AVWest's estoppel claims should be struck out on the basis that 'the pleaded case does not contain allegations of fact that support the claims that are made; and do so [sic] in a way that is likely to prejudice, embarrass or delay the fair trial of the action'.[30]
Estoppel by convention
[30] Bombardier's Submissions [25]. See also [14(b)].
AVWest pleads its conventional estoppel claims in the alternative to specified contractual claims.[31] It will be recalled that AVWest pleads conventional estoppel in relation to alleged Common Assumptions and also in relation to the alleged Aircraft 7000 4 Assumption.
The Common Assumptions claim
[31] Consolidated Statement of Claim [101], specifying [5], [6], [41] and [74].
Bombardier first challenges the adequacy of the factual foundation of the paragraphs in the Conventional Estoppel Pleading which allege that terms that had been discussed were 'implemented and performed', being paragraphs 104 and 109 of the Consolidated Statement of Claim.
September 2012 Terms were implemented and performed - paragraph 104
AVWest pleads in paragraph 5 of the Consolidated Statement of Claim that an oral agreement was made on about 18 September 2012. It pleads, in effect, that the parties orally agreed that, in consideration for specified acts by AVWest, Bombardier agreed that all aircraft purchases (other than in relation to aircraft already resold to a third‑party buyer) would be on the terms pleaded in paragraph 6. I will refer to the alleged agreement as the 'September 2012 Oral Agreement'.
There are three terms pleaded in paragraph 6, which were described by the parties as the 'minimum net return agreement', the 'cooperation agreement' and the 'replenishment agreement'. I will refer to them as the 'September 2012 Terms'.
In paragraph 103, AVWest pleads that, between 18 September 2012 and in or around April 2015, Bombardier did not resile from what it alleges had been agreed in paragraphs 5 and 6. I will refer to the period between 18 September 2012 and in or around April 2015 as the '2012‑2015 Period'.
In paragraph 104, AVWest pleads that, in the 2012‑2015 Period, the September 2012 Terms were implemented and performed by the parties in respect to the aircraft AVWest purchased from Bombardier in that period.
Bombardier sought further and better particulars of every fact, matter and circumstance relied on in support of the allegation in paragraph 104.
Although AVWest objected to the request on the basis that it was a request for evidence, it provided some particulars in Answer 3 of its Answers.
Bombardier complains that a 'raft of material facts' have been provided in Answer 3, and asserts that they should have been pleaded and 'properly particularised'.[32]
[32] Bombardier's Submissions [30].
It is not always easy to draw the line between a material fact and a particular. In my view, it is unnecessary to undertake an analysis of the difference between material facts and particulars, and apply that to the allegations in issue. This is because, even if the matters particularised should be characterised as material facts, I would not exercise my discretion to strike out the pleading on that basis. Bombardier would not suffer any meaningful prejudice. In particular, Bombardier would not be left any less informed as to the nature of the case against it simply because some of the alleged facts are described as particulars.
I do accept that there is a need for proper particulars. I will deal with whether the particulars are sufficient when discussing Bombardier's alternative application for further and better particulars.
2014 Terms were implemented and performed - paragraph 109
AVWest pleads in paragraph 74 of the Consolidated Statement of Claim that an oral agreement was made on 19 December 2014. The alleged terms included a term that the September 2012 Terms would apply to the resale of specified aircraft.
I will refer to the alleged oral agreement as the '2014 Oral Agreement' and I will refer to its alleged terms as the '2014 Terms'.
In paragraph 109 of the Consolidated Statement of Claim, AVWest pleads that, between 19 December 2014 and in or around April 2015, the 2014 Terms were implemented and performed by the parties in respect to the aircraft AVWest purchased from Bombardier in that period.
I will refer to the period between 19 December 2014 and in or around April 2015 as the 'Four Month Period'.
Allegation of inconsistency
Bombardier submits that the plea in paragraph 109 that the 2014 Terms were implemented and performed is inconsistent with AVWest's primary case that the 2014 Oral Agreement, made in those terms, was breached. Bombardier said it 'appreciates that the estoppel claim is put as an alternative claim, but it is an alternative in law, not in fact'.[33]
[33] See, in particular, Bombardier's Submissions [35] ‑ [36] and ts 250 ‑ 252, 255 ‑ 257.
Pleading inconsistent facts in the alternative is not necessarily impermissible. It will only be impermissible where one of those sets of facts must be known to the party to be false. This is because it is to place on the record positive statements of fact, one or other of which must be known by the pleading party to be untruthful.[34]
[34] See Mayfield v P & B Corporation Pty Ltd [No 2][2015] WASC 356 [84].
Bombardier did not submit that AVWest's pleading fell into this category. In any event, I do not accept that there is any factual inconsistency in the pleading.
Bombardier asks 'how it can be said on the one hand that the minimum net returns and replenishment alleged agreements did not occur, which leads to a breach of contract case and yet apparently the same material facts form the basis of an ongoing common assumption to which we should be bound on the basis that it was common and it did happen'.[35]
[35] ts 256.
The answer is that this is not what AVWest is saying.
In the Consolidated Statement of Claim, AVWest pleads that Bombardier breached the 2014 Oral Agreement by, among other things,[36] not doing specified things and thereby manifesting an intention not to perform the 2014 Oral Agreement as regards to specified matters.[37] The specified things were not responding to specified communications from AVWest in the period between 9 November 2016 and 11 August 2017, and not selling or offering aircraft positions to AVWest for two types of aircraft even though both types had been sold.
[36] AVWest also alleges various breaches of the cooperation term in [6(b)], which it alleges was incorporated in the 2014 Oral Agreement - see [136] ‑ [144] of the Consolidated Statement of Claim.
[37] See [95] and [98] of the Consolidated Statement of Claim.
Bombardier did not identify, or even seek to identify, any part of the Conventional Estoppel Pleading which alleged that any of those things were done. Rather, Bombardier's complaint appears to be that, regardless of what is specified, it is factually inconsistent to allege a breach of an agreement and, in the alternative, that terms of that agreement were implemented and performed during a particular period in relation to the aircraft purchased in that period.
I do not accept this. The pleading clearly identifies what AVWest asserts Bombardier did (or did not do) in breach of the 2014 Oral Agreement. It (now) clearly identifies what it asserts occurred by way of implementation and performance of the 2014 Terms in the Four Month Period in relation to the aircraft purchased in that period. Bombardier did not identify any actual factual inconsistency in the matters relied upon in relation to these two claims. If the fact of breach in the respects alleged makes it less likely, as a matter of logic, that AVWest will be able to prove the parties were acting on common assumptions in other respects, that is a matter going to the merits, not to the pleading.
I therefore do not accept Bombardier's submission as to inconsistency.
Allegation of inadequate factual basis
Bombardier also submitted that the particulars did not provide a proper basis for the assertion in paragraph 109 that the 2014 Terms were implemented and performed. Bombardier submitted that the particulars did not provide a proper basis because they related to only one of the five matters alleged to have been commonly assumed.[38]
[38] Bombardier's Submissions [37] ‑ [38].
In AVWest's Answers, it had particularised paragraph 109 (over objection) by indicating that it relied upon matters pleaded in paragraphs 75 ‑ 81 and 106 of the Consolidated Statement of Claim. These paragraphs allege, among other things, that:
(1)pursuant to the term pleaded in paragraph 74(c) (one of the 2014 Terms), the parties entered into a written agreement on or about 22 December 2014 in relation to the sale and purchase of seven Global 6000 aircraft (Written December 2014 Agreement);[39]
[39] Consolidated Statement of Claim [75].
(2)specified things were done pursuant to the 2014 Oral Agreement and the Written December 2014 Agreement;[40]
[40] Consolidated Statement of Claim [76] and [79].
(3)specified things were done in relation to several of the seven Global 6000 aircraft the subject of the Written December 2014 Agreement;[41]
[41] Consolidated Statement of Claim [77], [78], [80], [81].
(4)payments were made in respect of three aircraft.[42]
[42] Consolidated Statement of Claim [106].
During the hearing, I indicated that my preliminary view was that it was not clear whether AVWest intended to allege that every term of the 2014 Terms was implemented and performed in the Four Month Period in respect of every aircraft purchased in that period.[43] AVWest agreed to clarify paragraph 109, and did so following the hearing by amending paragraph 109. Paragraph 109 now alleges that, during the Fourth Month Period, the 2014 Terms were implemented and performed by the parties in relation to the aircraft purchased in that period 'as follows', and then lists several matters. In the list, AVWest:
[43] See ts 217 ‑ 218.
(1)repeats paragraph 75, which expressly alleges that, pursuant to the term pleaded in paragraph 74(c) of the 2014 Terms, the parties entered into the Written December 2014 Agreement;
(2)repeats paragraph 76 which expressly alleges that AVWest did a specified thing pursuant to the 2014 Oral Agreement and the Written December 2014 Agreement;
(3)identifies specific conduct of Bombardier; and
(4)pleads that Bombardier did not resile, or inform AVWest that it was resiling, from the 2014 Terms.
In my view, these particulars are sufficient to provide a proper basis for the plea in paragraph 109.
I also note that it appears from the way paragraph 109 is now pleaded that AVWest is not asserting that each and every term of the 2014 Terms was implemented and performed in the Four Month Period in respect of every aircraft purchased in that period. Rather, it is asserting that the terms were implemented and performed to the extent identified in paragraph 109. If I have misunderstood that, AVWest should so advise.
I make one further comment. I accept AVWest's submission that it is not required to plead or particularise which of the alleged conduct supports which alleged term(s). Nevertheless, it will eventually have to do so and it would be useful if it did so at least by the time of creating, with Bombardier, the list of issues for trial. It would assist Bombardier and the court if AVWest could provide this information sooner rather than later.
Conduct and state of mind - paragraph 112
Bombardier next challenges the adequacy of the factual foundation of paragraph 112 of the Consolidated Statement of Claim.
In paragraph 112, AVWest pleads two of the elements of conventional estoppel: that the parties conducted their relationship on the basis of the Common Assumptions (alternatively on the basis of each of the assumptions) and that each party knew or intended that the other would act on that basis. Particulars were given in the Consolidated Statement of Claim itself and extensive particulars were provided (over objection) in AVWest's Answers.
Bombardier's written submissions in relation to the alleged factual deficiency of paragraph 112 were extremely brief and were essentially conclusions without explanation. Bombardier submitted that the particulars 'simply do not support the allegations'.[44] In the next paragraph, in what appears to be its conclusion to the common assumption section of its submissions, it submitted that, '[i]n the absence of any pleaded basis to support the statements sought to be relied upon as establishing an estoppel by convention, the pleading does not disclose a reasonable cause of action and should be struck out'.[45] Bombardier did not develop its complaint of factual deficiency in relation to paragraph 112 in oral argument.[46]
[44] Bombardier's Submissions [39].
[45] Bombardier's Submissions [40].
[46] Its oral submissions on paragraph 112 related to the particulars - see ts 264 ‑ 266.
I am not satisfied that the particulars do not support the allegations in paragraph 112. In my view, they provide a proper basis for the plea. They include assertions that:
(1)Bombardier had made representations[47] as to specific terms of future dealings, including that the term alleged in paragraph 6(a) would apply to aircraft purchases (except for aircraft which had already been resold to third‑party buyers);[48]
[47] The representations are pleaded in [5], [6] and [74].
[48] See Answer 5(a), 5(b) and 5(d). This has been further clarified in amended answers, discussed below.
(2)subsequently, AVWest asked, and Bombardier confirmed, that the terms of the purchase of additional aircraft positions would be on the terms pleaded in paragraph 6(a);[49]
[49] See Answer 5(b).
(3)Bombardier never resiled from the representations and confirmations in the relevant period;[50]
[50] See Answer 5(c) and 5(e).
(4)the parties acted consistently with, and in accordance with, those terms in specific instances.[51]
[51] See Answer 5(f).
In its application for further and better particulars, Bombardier sought further particulars of paragraph 112. I will deal with this when discussing that application.
The Aircraft 7000 4 Assumption claim - paragraph 117
Bombardier submits that the pleading in paragraph 117 is inadequate. Bombardier submits, in effect that the particulars are deficient and confused.[52]
[52] Bombardier's Submissions [41] ‑ [46].
Paragraph 117 of the Consolidated Statement of Claim relates to the conventional estoppel claim in relation to aircraft 7000 4. Paragraph 117 asserts that the parties conducted their relationship on the basis of the Aircraft 7000 4 Assumption and knew or intended that the other would act on that basis. Particulars are provided as follows:
(a)The plaintiff refers to and repeats paragraphs 41, 42 and 44 above.
(b)The person with whom the plaintiff dealt, namely Mr Horner, was a senior executive of the defendant and his knowledge is to be imputed to the defendant.
(c)The terms and tenor of the discussion between Mr Horner of the defendant and Mr Roberts of the plaintiff, as pleaded in paragraphs 41 and 148, were such that encouraged the plaintiff to act as it did.
In paragraph 41, AVWest asserts that, in or about May 2012, the parties orally agreed that:
(a)the plaintiff and the defendant would enter into a deed terminating the existing aircraft purchase agreement for aircraft 7000 4 to enable the defendant to enter into a replacement purchase agreement with Fernell Pty Ltd to purchase that aircraft;
(b)the defendant would enter into a replacement purchase agreement with Fernell Pty Ltd for aircraft 7000 4; and
(c)if Fernell Pty Ltd subsequently terminated the replacement purchase agreement, the defendant would enter into a new aircraft purchase agreement with the plaintiff for aircraft 7000 4 on the same terms as the existing aircraft purchase agreement for aircraft 7000 4.
AVWest later pleads that this agreement was made in a telephone call between Mr Roberts of AVWest and Mr Horner of Bombardier.[53]
[53] See [148] of the Consolidated Statement of Claim.
In paragraph 42, AVWest asserts each party did something pursuant to that oral agreement - AVWest entered into a deed terminating the existing purchase agreement and Bombardier entered into a replacement purchase agreement with Fernell Pty Ltd.
AVWest then pleads that Fernell terminated that replacement purchase agreement in September 2015.[54] In paragraph 44, AVWest asserts that, after that date, it asked Bombardier to enter into a replacement purchase agreement for aircraft 7000 4.
[54] See [43] of the Consolidated Statement of Claim.
Bombardier makes, in effect, five complaints.
First, Bombardier says it assumes that each of the three particulars in paragraph 117 is intended to relate to knowledge and/or intention, and not to conduct. It says it makes this assumption because the particulars to paragraph 117 are the same as for paragraph 132[55] and the latter is confined to an allegation of knowledge and intention.
[55] Paragraph 132 is a similar allegation made in the context of the promissory estoppel claim.
I do not accept that this assumption can be made. The matters particularised include conduct. Conduct may support an allegation of how the parties conducted their relationship as well as supporting an inference of knowledge or intention. Nevertheless, for the avoidance of doubt, if AVWest did intend the particulars to be limited to knowledge and intention, it should make that plain.
Second, Bombardier submits that the paragraphs referred to in particular (a) (being paragraphs 41, 42 and 44, as outlined earlier) do not contain any reference to Bombardier's knowledge or intention. This misunderstands AVWest's plea. AVWest says, in effect, that it can be inferred that Bombardier knew or intended that AVWest would act on the basis of the assumption because of the things it alleges the parties did and said in paragraphs 41, 42 and 44.
Third, Bombardier submits, in effect, that the pleading fails to identify what Mr Horner is alleged to have known. I do not accept this. The pleading makes it clear that he is alleged to have known what was discussed in a telephone call he had with Mr Roberts of AVWest in about May 2012.[56]
[56] That the pleading means what it says was confirmed in the Plaintiff's Outline of Submissions in Opposition to Defendant's Application, filed 31 July 2020 (AVWest's Submissions) [72] and ts 285.
Fourth, Bombardier submits that it is not clear what is meant by the assertion that it 'encouraged' AVWest to act in a certain way. Bombardier asks if 'encouraged' is intended to be a synonym for 'intended'. While this is a minor point, it is appropriate in my view that AVWest answer that question. The word 'intended' is used in conventional estoppel in a particular context and any ambiguity should be avoided.
Fifth, Bombardier submits that the statement that the encouragement is said to be based on the 'terms and tenor' of a single telephone conversation is vague, unclear and embarrassing. In my view, the only matter that is at all unclear is the word 'tenor'. It is not obvious what it adds. It could be taken to mean that, in addition to words spoken, there was some underlying, but unspoken, thought or meaning. From the pleading as a whole, including the Answers, I would not interpret the phrase in that way. However, it should be made clear. If AVWest intends to rely only on what was actually said, the words 'and tenor' are unnecessary. If AVWest intends to rely on something else, it should identify what that is.
Finally, I note that the same issues arise in relation to those words in the particulars to paragraphs 112, 125 and 132. The words 'encouraged' and 'tenor' should be clarified in each paragraph.
Promissory estoppel
The AVWest Assumptions claim - paragraphs 123 ‑ 125
In paragraphs 121 to 128, AVWest pleads promissory estoppel in relation to the alleged AVWest Assumptions.
Bombardier submits that AVWest's particulars in relation to promissory estoppel 'simply do not deal with the issues of inducement and reliance, nor how it is said that Bombardier knew or intended that AVWest would act on the basis of the assumptions or expectations'.[57]
[57] Bombardier's Submissions [50].
Paragraphs 121 ‑ 122 of the Consolidated Statement of Claim set out the alleged AVWest Assumptions. It will be recalled that the AVWest Assumptions are pleaded to have been in the same terms as the Common Assumptions alleged in the Conventional Estoppel Pleading.
In paragraph 123, AVWest pleads that Bombardier induced AVWest to adopt the AVWest Assumptions. AVWest particularises this by repeating paragraphs 5, 6, 7, 9, 12, 74 ‑ 79, 97, 103 ‑ 106 and 108 ‑ 109.
As noted earlier, paragraph 5 alleges the September 2012 Oral Agreement, on the terms pleaded in paragraph 6, which I refer to as the September 2012 Terms.
Paragraph 7 pleads that AVWest did things pursuant to the September 2012 Oral Agreement.
Paragraph 9 alleges that the parties entered into written aircraft purchase agreements in relation to five aircraft.
Paragraph 12 alleges that, with respect to specified aircraft purchase agreements, including two of the agreements pleaded in paragraph 9, a third‑party buyer was found, Bombardier entered into replacement purchase agreements with the third‑party, and the parties entered into a deed terminating the existing purchase agreement with AVWest.
I earlier set out what is alleged in paragraphs 74 ‑ 79. Paragraph 74 alleges the 2014 Oral Agreement. Paragraphs 75 ‑ 79 allege that:
(1)pursuant to the term pleaded in paragraph 74(c) of the 2014 Terms, the parties entered into the Written December 2014 Agreement;[58]
[58] Consolidated Statement of Claim [75].
(2)that specified things were done pursuant to the 2014 Oral Agreement and the Written December 2014 Agreement;[59]
[59] Consolidated Statement of Claim [76] and [79].
(3)that specified things were done in relation to two of the seven Global 6000 aircraft the subject of the Written December 2014 Agreement;[60]
[60] Consolidated Statement of Claim [77] and [78].
In paragraph 97, AVWest pleads that, pursuant to the 2014 Oral Agreement, specified things were done in relation to aircraft Global 6000 9515.
In paragraphs 103 ‑ 106, AVWest pleads that, during the 2012‑2015 Period:
(1)Bombardier did not resile from, in effect, the September 2012 Oral Agreement;[61]
[61] Consolidated Statement of Claim [103].
(2)the September 2012 Terms were implemented and performed by the parties in respect to the aircraft AVWest purchased from Bombardier in that period;[62]
[62] Consolidated Statement of Claim [104].
(3)AVWest made payments in respect of specified aircraft.[63]
[63] Consolidated Statement of Claim [105] and [106].
In paragraphs 108 ‑ 109, AVWest pleads, in effect, that, during the Four Month Period:
(1)Bombardier did not resile from the 2014 Oral Agreement;[64]
[64] Consolidated Statement of Claim [108].
(2)the 2014 Terms were implemented and performed by the parties in respect to the aircraft purchased by AVWest in that period.[65]
[65] Consolidated Statement of Claim [109].
In paragraph 124, AVWest asserts that it did specified things in reliance on the AVWest Assumptions.
In paragraph 125, AVWest asserts that Bombardier knew that AVWest would act, and/or intended AVWest to act, as AVWest did in reliance on the AVWest Assumptions.
AVWest particularised paragraph 125 as follows:
(a)[AVWest] refers to and repeats paragraphs 5, 6, 7, 9, 12, 74 ‑ 79, 97, 103 ‑ 106 and 108 ‑ 109 above;
(b)The persons with whom [AVWest] dealt, namely Messrs Ridolfi, Ercolanese, Horner and Martel, were senior executives of [Bombardier] and their knowledge is to be imputed to [Bombardier].
(c)The terms and tenor of the discussions between the representatives of [Bombardier] and [AVWest], as pleaded in paragraphs 5, 74, 147 and 149,[66] were such that encouraged [AVWest] to act as it did.
[66] Paragraphs 5 and 147 relate to the alleged September 2012 Oral Agreement and paragraphs 74 and 149 relate to the alleged 2014 Oral Agreement.
The paragraphs cited in particular (a) are the same paragraphs that were cited in the particulars to paragraph 123, and were outlined earlier.
In AVWest's Answers, it particularised paragraphs 123 ‑ 125 (over objection) by repeating its Answer 5, which was an answer in relation to paragraph 112.
In Answer 5, AVWest stated it relied on:
(a)the making of and the terms of the representation pleaded in paragraphs 5[67] and 6(a) of the Consolidated Statement of Claim;
[67] As noted earlier, paragraph 5 pleads, in effect, that in about September 2012, the parties orally agreed that, in consideration for specified acts by AVWest, Bombardier agreed that all aircraft purchases (save for aircraft already resold to a third‑party buyer) would be on the terms set out in paragraph 6.
(b)during the discussions which occurred in or around September 2012, July 2013, January 2014, June 2014, September 2014 and December 2014, involving:
(i)before September 2014, Mr Roberts of the plaintiff and Messrs Ridolfi, Ercolanese and Horner of the defendant; and
(ii)in or after September 2014, Mr Roberts of the plaintiff and Messrs Ercolanese, Horner and Martel of the defendant,
concerning the purchase of additional aircraft positions by the plaintiff, Mr Roberts asked for and received confirmation from the defendant's representatives referred to above that the terms pleaded in paragraph 6(a) of the Consolidated Statement of Claim were applicable to those purchases;
(c)the fact that the defendant never resiled from those representations and confirmations between 18 September 2012 and in or around April 2015;
(d)the making of and the terms of the representation pleaded in paragraph 74 of the Consolidated Statement of Claim;
(e)the fact that the defendant never resiled from those representations between 19 December 2014 and in or around April 2015; and
(f)the actual dealings between the plaintiff and the defendant between 19 December 2014 and in or around April 2015 as pleaded in the answers to requests 3 and 4 above whereby the defendant acted consistently and in accordance with those representations and confirmations.
As will be seen, Answer 5 was amended after the hearing to make it clearer. However, even on the basis of the answer as it stood at the time of the hearing, the pleading (including Answer 5) plainly dealt with the issues of inducement and reliance, and set out what AVWest asserts will establish Bombardier's knowledge.
In its application for further and better particulars, Bombardier sought further particulars of paragraphs 123 ‑ 125. I will deal with this when discussing that application.
The Aircraft 7000 4 Assumption claim - paragraph 132
In paragraphs 129 to 135, AVWest pleads promissory estoppel in relation to the alleged Aircraft 7000 4 Assumption.
Paragraph 129 of that pleading asserts, in effect, that AVWest assumed or expected that the parties would do the matters alleged to have been agreed to be done in paragraph 41.
Paragraph 132 of that pleading asserts that Bombardier knew or intended that AVWest would act as it did in reliance on the assumptions or expectations pleaded in paragraph 129.
The particulars to paragraph 132 are the same as the particulars to paragraph 117, set out earlier.[68] Bombardier submits, therefore, that the Promissory Estoppel Pleading in paragraph 132 suffers from the same deficiencies as the pleading in paragraph 117.[69] My response is the same as my response to Bombardier's submissions in relation to paragraph 117.
[68] See under the heading 'The Aircraft 7000 4 Assumption claim - paragraph 117'.
[69] Bombardier's Submissions [52] ‑ [54].
Conclusion on strike out application
For the reasons given above, I am not satisfied that the estoppel claims fail to disclose a reasonable cause of action. I am also not satisfied that they fail to allege a proper factual basis. I am not satisfied that they may prejudice, embarrass or delay the fair trial of the action.
I would therefore dismiss the application to strike out the estoppel claims.
Particulars
In the alternative to its application to strike out parts of the statement of claim, Bombardier seeks that AVWest provide further and better particulars with respect to every fact, matter and circumstance relied on in support of specified allegations in the Consolidated Statement of Claim.
Answer 3 - paragraph 104
I earlier addressed Bombardier's complaints about paragraph 104 of the Consolidated Statement of Claim and its assertion that a number of matters that had been provided as particulars were actually material facts. What remains to deal with is Bombardier's complaint that it does not understand the case against it, asserting a lack of clarity and inadequate detail.[70]
[70] See Bombardier's Submissions [32], [71] ‑ [75] and ts 258 ‑ 264.
It will be recalled that paragraph 104 asserts that, during the 2012‑2015 Period, the September 2012 Terms were implemented and performed by the parties in respect to the aircraft AVWest purchased from Bombardier in that period.
Bombardier sought particulars of every fact, matter and circumstance relied on in support of the allegation in paragraph 104. AVWest responded to that request in Answer 3 of its Answers as follows:
The plaintiff objects to this request on the basis that it is a request for evidence. Without prejudice to that objection:
(a)the plaintiff repeats paragraph 105[71] of the Consolidated Statement of Claim; and
[71] In paragraph 105, AVWest alleged that, during the relevant period, it made payments in respect to 32 aircraft to Bombardier, identified in an annexure to the pleading.
(b)in relation to those aircraft referred to in paragraph 105 of the Consolidated Statement of Claim, in the period between 18 September 2012 until on or around April 2015, the defendant:
(i)provided the plaintiff with its full support and cooperation with the joint marketing of those aircraft purchased by the plaintiff and with the resale of those aircraft to third‑party buyers including by the defendant:
(A)showing those aircraft as available for purchase on the defendant's master delivery schedule;
(B)finding third-party buyers for those aircraft purchased by the plaintiff;
(C)adjusting the defendant's master delivery schedule to facilitate the sale of those aircraft to third-party buyers; and
(D)selling those aircraft according to their availability for delivery as shown on the defendant's master delivery schedule; and
(ii)upon the resale to a third-party buyer of any one of those aircraft, except the aircraft referred to in paragraphs 81, 86, 88, 90 and 92 of the Consolidated Statement of Claim, the defendant:
(A)sold to the plaintiff its next available aircraft position for the same type of aircraft; and
(B)adjusted the prices of those aircraft positions taking into account the net return which had been received by the plaintiff on the resale of the aircraft and the market conditions so that the plaintiff would receive, upon the sale of that aircraft position to a third-party buyer, the applicable minimum net return for that aircraft as pleaded in paragraph 6(a) of the Consolidated Statement of Claim.
Bombardier submitted, in effect, that the phrase 'upon the resale to a third‑party buyer of any one of those aircraft' in (b)(ii) was unclear.[72] It submitted that it was not clear if AVWest was alleging that this occurred in respect of each of the aircraft referred to, or only some of them.
[72] Bombardier's Submissions at [31] ‑ [32], [71] and the first sentence of [73].
During the hearing, I indicated that I agreed it was unclear. AVWest undertook to clarify it. Following the hearing, AVWest filed an amended response to Bombardier's Request[73] (Amended Answers). Amended Answer 3 clearly identifies the aircraft to which it refers.[74]
[73] Plaintiff's Amended Further and Better Particulars of the Amended Consolidated Statement of Claim filed 9 September 2020 (Amended Answers).
[74] See Amended Answer 3(b) and Attachment A.
Although Bombardier did not withdraw its submissions on this issue following the filing of the Amended Answers, I assume this was an oversight. There is no longer any lack of clarity.
Similarly, Bombardier orally submitted it did not know whether the master schedule in Answer 3(b)(D) was the original master schedule or the adjusted one.[75] This too has been clarified in Amended Answer 3.[76]
[75] ts 258 ‑ 260.
[76] See Amended Answer 3(b)(iv).
Bombardier also submitted that the facts relied upon were unclear and not properly particularised. It said:[77]
[77] Bombardier's Submissions [73] ‑ [74].
By way of example, was the Global 6000 Vision No 2 (being the first line item in Attachment A) one of the 'any' aircraft that were resold to a third‑party buyer? If so, when? What was the next available position allegedly sold to AVWest as a result? By what means was the alleged sale of the aircraft position of that type effected? What was the alleged net return? What was the alleged price adjustment? How was the price of that aircraft allegedly adjusted to take account of the various factors alleged to be relevant?
All these are factual matters. None are pleaded or particularised. The claim cannot properly be advanced, understood, or responded to without them. They are material facts or particulars necessary for the Court to consider, and Bombardier to properly understand and defend, the claim that it implemented and performed certain assumptions over a two and a half year period. … What is being asked for are the material facts and particulars needed to ensure there is a case to meet, and for that case to be understood and responded to if necessary.
The Amended Answers provide further clarification, but do not provide all of the detail sought by Bombardier. In Amended Answer 3, AVWest says:
The plaintiff objects to this request on the basis that it is a request for evidence. Without prejudice to that objection:
(a)the plaintiff repeats paragraph 105 of the Amended Consolidated Statement of Claim;
(b)the terms pleaded in paragraph 6 of the Amended Consolidated Statement of Claim applied to the aircraft purchased by the plaintiff from the defendant identified in Attachment A. In relation to the aircraft identified in Attachment A, in the period between 18 September 2012 until on or around April 2015, the defendant provided the plaintiff with its full support and cooperation with the joint marketing of those aircraft and with the resale of those aircraft to third-party buyers including by the defendant:
(i)showing those aircraft as available for purchase on the defendant's master delivery schedule;
(ii)finding third-party buyers for those aircraft;
(iii)adjusting the defendant's master delivery schedule to facilitate the sale of those aircraft to third‑party buyers; and
(iv)selling those aircraft according to their availability for delivery as shown on the defendant's master delivery schedule (as adjusted from time to time);
(c)in the period between 18 September 2012 until on or around April 2015, following the resale to third-party buyers of aircraft purchased by the plaintiff, the defendant made available for purchase by the plaintiff, the next available aircraft position for the same type of aircraft to replace those aircraft which had been sold to third-party buyers at prices which had been adjusted taking into account the net return which had been received by the plaintiff on the resale of the aircraft and the market conditions so that the plaintiff would receive, upon the sale of that new aircraft to a third-party buyer, the applicable minimum net return for that aircraft as pleaded in paragraph 6(a) of the Amended Consolidated Statement of Claim; and
(d)in the period between 18 September 2012 until on or around April 2015, the defendant:
(i)sold those new aircraft to the plaintiff at the adjusted prices;
(ii)provided its full support and cooperation with the joint marketing and resale of those new aircraft to third‑party buyers;
(iii)upon the sale of those new aircraft to third‑party buyers, entered into termination deeds with the plaintiff in respect of those new aircraft; and
(iv)pursuant to the termination deeds, paid the plaintiff the profit or 'upside' from the resale of the new aircraft to third‑party buyers.
I do not accept that more detail is required to enable the claim to be properly advanced, understood, and responded to. It is true that it would be possible to provide more detail. However, I do not accept such detail is required. Bombardier knows the case it has to meet. The issues have been identified, and the proper scope of discovery and the admissibility of evidence can be determined. I further note that all of the details sought would be within the knowledge of Bombardier.
As I indicated during the hearing, there would be an obvious value in as much detail being provided as possible and as soon as possible. To the extent that AVWest is able to provide more detail, even on a provisional basis, I would encourage it to do so. After discovery and inspection has been completed, I will be inviting the parties to make a concerted effort to identify those matters that can be agreed on a detailed level.
Answer 5 - paragraph 112
It will be recalled that paragraph 112 relevantly asserts that the parties conducted their relationship on the basis of the Common Assumptions and knew or intended that the other would act on that basis. It will be recalled that these are two of the elements of the Conventional Estoppel Pleading.
The particulars to paragraph 112 asserted:
(a)The plaintiff refers to and repeats paragraphs 5, 6, 7, 9, 12, 74 ‑ 81, 97, 103 ‑ 106 and 108 ‑ 109 above.
(b)The persons with whom the plaintiff dealt, namely Messrs Ridolfi, Ercolanese, Horner and Martel, were senior executives of the defendant and their knowledge is to be imputed to the defendant.
(c)The terms and tenor of the discussions between the representatives of the defendant and the plaintiff, including as pleaded in paragraphs 5, 74, 147 and 149, were such that encouraged the plaintiff to act as it did.
Bombardier sought particulars of every fact, matter and circumstance relied on in support of the allegations in paragraph 112.
Answer 5 stated:
The plaintiff objects to these requests on the basis that (a)[78] is a request for evidence and that paragraph 112 is already adequately pleaded and particularised and no further particulars are required to allow the defendant to understand the case put against it. Without prejudice to that objection, the plaintiff relies on the following facts and matters:
[78] The request in (a) sought particulars of the allegation that the parties conducted their relationship on the basis of the Common Assumptions.
(a)the making of and the terms of the representation pleaded in paragraphs 5[79] and 6(a) of the Consolidated Statement of Claim;
[79] As noted earlier, paragraph5 pleads, in effect, that in about September 2012, the parties orally agreed that, in consideration for specified acts by AVWest, Bombardier agreed that all aircraft purchases (save for aircraft already resold to a third‑party buyer) would be on the terms set out in paragraph 6.
(b)during the discussions which occurred in or around September 2012, July 2013, January 2014, June 2014, September 2014 and December 2014, involving:
(i)before September 2014, Mr Roberts of the plaintiff and Messrs Ridolfi, Ercolanese and Horner of the defendant; and
(ii)in or after September 2014, Mr Roberts of the plaintiff and Messrs Ercolanese, Horner and Martel of the defendant,
concerning the purchase of additional aircraft positions by the plaintiff, Mr Roberts asked for and received confirmation from the defendant's representatives referred to above that the terms pleaded in paragraph 6(a) of the Consolidated Statement of Claim were applicable to those purchases;
(c)the fact that the defendant never resiled from those representations and confirmations between 18 September 2012 and in or around April 2015;
(d)the making of and the terms of the representation pleaded in paragraph 74 of the Consolidated Statement of Claim;
(e)the fact that the defendant never resiled from those representations between 19 December 2014 and in or around April 2015; and
(f)the actual dealings between the plaintiff and the defendant between 19 December 2014 and in or around April 2015 as pleaded in the answers to requests 3 and 4 above whereby the defendant acted consistently and in accordance with those representations and confirmations.
Bombardier submits that the particulars are inadequate in numerous respects.[80]
[80] See Bombardier's Submissions [82] ‑ [88] and ts 265 ‑ 266.
In my view, most of Bombardier's complaints in relation to paragraph 112 have no merit. Dealing with each of them fulsomely would require an amount of time disproportionate to the issues. I intend to deal with them as briefly as I consider it is possible to do.
First, Bombardier submits that the particulars to paragraph 112 in the Consolidated Statement of Claim are inadequate because they 'draw no distinction between the two distinct allegations'.[81]
[81] Bombardier's Submissions [82].
I do not accept this necessarily makes the particulars inadequate. There would be no need to draw a distinction if AVWest is asserting that each of the matters it particularises supports each of the alleged elements. Given the way paragraph 112 has been pleaded, AVWest appears to be making that assertion. As a matter of logic, in every case involving conventional estoppel, there is likely to be a significant overlap in the facts that support these two elements, and in some cases there may be a complete overlap.
If AVWest did not intend to make that assertion, then the particulars may well be inadequate unless it is obvious from the particulars which element or elements each is said to support. In my view, if AVWest did not intend to assert that all of the matters it particularises in paragraph 112 support both elements, it should clarify which element or elements is supported by each of the matters particularised.
Second, Bombardier submits that the particulars to paragraph 112 in the Consolidated Statement of Claim are inadequate because 'they fail to identify with any specificity how it is that any of the paragraphs relied on in particular (a) support either of the allegations'.[82]
[82] Bombardier's Submissions [82].
The paragraphs cited in particular (a) are the same paragraphs that were cited in the particulars to paragraph 123, and were outlined earlier.[83] I will refer to them as the 'cited paragraphs' or in similar terms.
[83] See under the heading 'The AVWest Assumptions claim - paragraphs 123 ‑ 125'.
In my view, there would only be a lack of specificity in particular (a) if not every part of each paragraph cited was relied upon in support of the allegations. If not every part is so relied upon, AVWest should specify which parts are.
It is plain from the cited paragraphs themselves why they are said to support the allegations in paragraph 112. AVWest asserts that the parties conducted their relationship on the basis of the Common Assumptions and knew or intended that the other would act on that basis because the parties said or did the things pleaded in the cited paragraphs. The cited paragraphs allege discussions and conduct, or context or details relating to those discussions and conduct, plainly relevant to the allegations.
Third, Bombardier makes numerous submissions in relation to the pleading as to knowledge and discussions in particulars (b) and (c) to paragraph 112 and in Answer 5. It is convenient to reproduce these complaints in full:[84]
[84] Bombardier's Submissions [83] ‑ [87].
83.Particulars (b) and (c) refer to unspecified 'knowledge' of named individuals and the 'terms and tenor' of discussions. What knowledge the individuals are said to have had is unstated; and the reference to the 'terms and tenor of the discussions' is vague and unclear.
84.Again provided under objection, AVWest's answer in relation to paragraph [112] purports to provide further particulars of the allegations.
85.Answer (a) takes AVWest no further than the dates on which the alleged representations in paragraphs 5 and 6(a) were made and is not sufficient to support the existence of a common assumption over an extended period.
86.Answer (b) refers to 'the discussions which occurred in or around September 2012, July 2013, January 2014, June 2014, September 2014 and December 2014'. 'The discussions' are referred to as though they are proper nouns or terms of art. However, other than the discussions in or around September 2012 and December 2014, none of the other discussions referred to in this answer can be identified in the Consolidated Statement of Claim, and it is not even clear that the September 2012 and December 2014 discussions are the same ones as those referred to in the Consolidated Statement of Claim, given that specific dates have been used previously.
87.Further, no material facts are provided with respect to where or how the discussions are said to have taken place, or the content of those discussions, or the participants in them, beyond the summary details provided in answer (b). This would be inadequate as a plea of material facts. It is even less satisfactory as purported particulars. In truth, the new particulars introduce new material facts, not previously pleaded, which themselves need to be properly particularised.
In relation to Bombardier's Submissions at paragraph 83, the knowledge of the individuals alleged in particular (b) is specified by paragraph 112 itself. It alleges that Bombardier knew or intended that AVWest would act on the basis of the Common Assumptions.[85]
[85] That the pleading means what it says was confirmed in AVWest's Submissions [68].
I have dealt with Bombardier's complaint about the phrase 'terms and tenor', indicating that I agree it is unclear.[86]
[86] See under the heading 'The Aircraft 7000 4 Assumption claim - paragraph 117'.
In relation to Bombardier's Submissions at paragraph 85, there is no need for every particular to sustain by itself an allegation of a common assumption over an extended period. The other particulars to Answer 5 assert, among other things, ongoing confirmations by Bombardier that the terms pleaded in paragraph 6(a) would apply to purchases, as well as a representation in 2014.
AVWest indicated during the hearing that it was willing to address the complaints raised in Bombardier's Submissions at paragraphs 86 ‑ 87, without a ruling being required. AVWest did so by its amendments to the Answers following the hearing. I am satisfied that the Amended Answer 5 sufficiently particularises the conversations.
Fourth, Bombardier repeated its complaints made in relation to paragraph 104 and Answers 3 and 4,[87] which I have dealt with elsewhere.
[87] Bombardier's Submissions [82] (last sentence) and [88].
Finally, I note, that AVWest acknowledged in its written submissions that there was a typographical error in further and better particular (f) in Answer 5.[88] This was not corrected in the Amended Answers, and should be.
[88] AVWest's Submissions [66(d)].
Answers 7, 8 and 9 - paragraphs 123, 124 and 125
Paragraphs 123 ‑ 125 were set out earlier.[89] It will be recalled that, in AVWest's Answers, it further particularised paragraphs 123 ‑ 125 (over objection) by repeating its Answer 5.
[89] See under the heading 'Promissory estoppel' under the subheading 'The AVWest Assumptions claim - paragraphs 123 ‑ 125.
Bombardier's submissions in relation to its application for further and better particulars of paragraphs 123 ‑ 125 were brief.[90]
[90] Bombardier's Submissions [92] ‑ [95].
First, Bombardier repeated its criticism of Answer 5.[91] I dealt with this in the previous section.
[91] Bombardier's Submissions [92].
Second, Bombardier submitted that the particulars to paragraph 123 'fail to identify with any particularity how the matters pleaded in the paragraphs identified support the allegation that the defendant induced the plaintiff to adopt the assumptions or expectations'.[92]
[92] Bombardier's Submissions [93].
In the particulars to paragraph 123, AVWest referred to and repeated paragraphs 5, 6, 7, 9, 12, 74 ‑ 79, 97, 103 ‑ 106 and 108 ‑ 109, and said that further particulars may be provided following discovery and inspection.
It is true that AVWest did not provide any further detail beyond citing these paragraphs (and later referring to Answer 5). However, in my view, it was not required to do so.
In my discussion of the alleged factual deficiencies in paragraph 123, I set out what those cited paragraphs pleaded.[93] In my view, AVWest's case on inducement is plain from the content of those paragraphs. No further specification is required to enable Bombardier to understand the case against it. No further specification is required to identify the issues, or define the scope of discovery, or identify the admissibility of evidence.
[93] See under the heading 'Promissory estoppel' under the subheading 'The AVWest Assumptions claim - paragraphs 123 ‑ 125.
Third, Bombardier submitted that it was inappropriate for AVWest to plead that further particulars may be provided following discovery and inspection when this would be within AVWest's knowledge.[94] On its face, this submission has merit. Unless there is material within Bombardier's possession that triggered a recollection on the part of someone acting for AVWest, it is difficult to see how material not in AVWest's possession could have induced it to do something. AVWest did not address this submission. AVWest did not suggest it sought to preserve the position in case there was material within Bombardier's possession that might trigger a recollection on the part of someone acting for AVWest. Accordingly, I agree AVWest should clarify the position or delete those words.
[94] Bombardier's Submissions [93].
Fourth, Bombardier submitted that the 'particulars provided in support of paragraph 124 merely particularise that the plaintiff entered into commercial arrangements with the defendant and are not sufficient to ground the allegation that those things were done "in reliance on" the assumptions or expectations pleaded in paragraphs 121 and/or 122 above'.[95]
[95] Bombardier's Submissions [94].
During the hearing, counsel for Bombardier clarified that he was not suggesting that AVWest needed to plead, for example, that a particular person had decided to do the matters pleaded in paragraph 124 because he or she was relying on the assumptions or expectations. Rather, he said that Bombardier's concern was that AVWest might seek to claim that it did things other than the matters pleaded in paragraph 124 in reliance. Given the pleading, that concern is difficult to understand. In any event, counsel for AVWest confirmed that AVWest sought only to rely on those matters that it had pleaded.[96]
[96] ts 268 ‑ 269.
Fifth, Bombardier submitted that the 'particulars provided in support of paragraph 125 suffer from the same deficiencies as set out above with respect to those provided in support of paragraph 112 in the Consolidated of [sic] Statement of Claim; including the problem in relation to what "knowledge" is alleged and what the "tenor and terms" of the alleged discussions are alleged to be'.[97] I have already dealt with those submissions.[98]
[97] Bombardier's Submissions [95].
[98] See under the heading 'Promissory estoppel' under the subheading 'The AVWest Assumptions claim - paragraphs 123 ‑ 125.
Answer 10 - paragraph 131
Bombardier's complaint in relation to paragraph 131 is that the sole particular refers to paragraph 41 which merely alleges an oral agreement was made. This is inaccurate. AVWest particularises paragraph 131 by reference to paragraph 42, in which it alleges that, pursuant to the oral agreement pleaded in paragraph 41, the parties engaged in specified conduct.
Accordingly, I do not accept further particulars are required of paragraph 131.
Answer 11 - paragraph 132
Bombardier makes the same complaint in relation to the particulars to paragraph 132 as it does to paragraph 112. My response is therefore the same.
Conclusion
For these reasons, I would dismiss Bombardier's application to strike out parts of the Consolidated Statement of Claim.
However, I have identified some matters that do require clarification:
(1)the word 'encouraged' and 'tenor', wherever those words appear; and
(2)the reference to further particulars may be provided on discovery in paragraph 123.
In relation to Bombardier's application for further and better particulars, I made a number of observations as to matters that AVWest ought to clarify, and a typographical error that should be corrected. Subject to those observations, I would dismiss Bombardier's application for further and better particulars.
I will hear from the parties as to formal orders to reflect these reasons and as to costs. I note my preliminary view is that Bombardier should pay AVWest's costs as it was largely unsuccessful.
Finally, I will raise with AVWest whether it considers it could sensibly amalgamate the particulars provided in its Amended Answers with the particulars in the Consolidated Statement of Claim, for ease of reference.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Associate to the Honourable Justice Archer3 NOVEMBER 2020
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