Barry Edwin Collins, Rosemary Anne Collins and Peter Edwin Harrold v Mervyn Osborne Humphries and Pete Adele Humphries - [2003] WADC 201

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: BUNBURY

CITATION: BARRY EDWIN COLLINS, ROSEMARY ANNE COLLINS AND PETER EDWIN HARROLD -v- MERVYN OSBORNE HUMPHRIES AND PETE ADELE HUMPHRIES [2003] WADC 201

CORAM: FENBURY DCJ

HEARD: 15 SEPTEMBER 2003

DELIVERED : 26 SEPTEMBER 2003

FILE NO/S: CIV 5 of 2003

BETWEEN: BARRY EDWIN COLLINS, ROSEMARY ANNE COLLINS AND PETER EDWIN HARROLD
Plaintiffs
AND
MERVYN OSBORNE HUMPHRIES AND PETE ADELE HUMPHRIES
Defendants

Catchwords:

Practice and procedure - Appeal from decision of Deputy Regisrar - Turns on own facts

Legislation:

Supreme Court Rules, O 20, r 19

Result:

Appeal allowed in part

Representation:

Counsel:

Plaintiffs: Mr M C Owens
Defendants: Mr G J Dunne

Solicitors:

Plaintiffs: Max Owens & Co
Defendants: Slee Anderson & Pidgeon

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

Nil

Case(s) also cited:

Nil

FENBURY DCJ: In this matter the plaintiff purchasers sue the defendant vendors for damages alleging breach of contract of sale of a turf farming business.
The plaintiffs allege breaches of express and implied terms relating to the use that could be made of some of the land included and sold with the business.
The plaintiffs also allege there were false representations, both explicit and implicit, in pre‑contractual negotiations and, particularly, in written correspondence.
The defendants filed a defence that included mere denials and advanced no positive case, and then the defendants issued a chamber summons to strike out parts of the statement of claim pursuant to O 20, r 19.
Paragraph 2 of that chamber summons sought the following order:
"Pursuant to O 20, r 19(1)(a) and/or (b) and/or (c) and/or (d) of the Rules of the Supreme Court, paragraphs 5, 9 and 21 of the plaintiffs' statement of claim against the defendants dated 6 May 2003 be struck out, on the grounds that the paragraphs:
(a)disclose no reasonable cause of action;
(b)are frivolous and vexatious;
(c)may prejudice, embarrass or delay the fair trial of this action; and
(d)are otherwise an abuse of the Court's process."
At the hearing the defendants apparently limited their attack upon the statement of claim to par 9 and par 12. It was only in respect of those paragraphs that the Deputy Registrar made the orders sought.
The plaintiffs filed a notice of appeal pursuant to O 6, r 11 of the District Court Rules.
The notice of appeal seeks the following orders:
"1.That the chamber summons filed 13 June 2003 be dismissed.
2.The defendants pay the plaintiffs' costs of the chamber summons (even in the event that the appeal is dismissed or such alternative order as to costs as is thought fit in respect of the chambers summons).
3.The defendants pay the costs of this appeal.
It is not possible from the court file to discern the Deputy Registrar's reasons for striking out par 9 and par 12. Counsel for the plaintiffs was counsel at the hearing and he informed the Court of what occurred in Chambers from the Bar Table.
In order to consider whether par 9 and par 12 should be struck out, reference needs to be made to par 8 of the statement of claim. Paragraph 8 reads:
"Prior to entering into the Contract of Sale, or alternatively the Lease, the Defendants represented to the Plaintiffs that 27,500 square metres of turf on Lot 20 would be ready to be harvested by 31 May, 2000 (Representation).
Particulars
(A)The Representation was written and was contained in a facsimile letter from the first named Defendant (in his capacity as a partner of the second named Defendant) to Mr Jeff Cheffers of LJ Hooker, Bunbury.
(B)The facsimile letter was sent to Mr Cheffers by the Defendants with the intention that the information contained therein would be communicated to the Plaintiffs for the purpose of them preparing a cash flow projection and as part of pre‑contractual negotiations, concerning the proposed sale of the Business, between the Plaintiffs and the Defendants.
(C)A copy of the facsimile letter was given to the Plaintiffs by Mr Cheffers.
(D)A copy of the facsimile letter may be inspected at the office of the Plaintiffs' solicitor, by appointment, during normal office hours."
Paragraph 9 of the statement of claim is in these terms:
"The Representation (sic) contains a further implied representation to the effect that the Plaintiffs would be able to harvest turf, which was ready to be harvested as at 31 May, between 1 June and 31 August in each year of the Lease (implied Representation).
Paragraph 12 of the statement of claim stated:
"By reason of the facts pleaded in paragraphs 9‑12 inclusive, the Defendants warranted the truth of the Representation, or implied Representation, or both, in consideration of which the Plaintiffs agreed to enter into the Contract of Sale, or alternatively the Lease (Collateral Warranty)."
According to the submissions of the plaintiffs the Deputy Registrar struck out par 9 because he took the view that "paragraph 8 did not support paragraph 9". He struck out par 12 because "it drew upon paragraph 9".
In my view the observation can immediately be made that par 9 does not make sense. It speaks of "the representation" containing a further implied representation and so on. It seems to me that what the pleader is referring to is the facsimile letter referred to in par 8, not "the representation" said to be contained in it. From that angle par 9 simply does not make sense.
But more to the point, there are no material facts pleaded in par 8 that appear to relate to the alleged implied representation. The mere pleading of the existence and location of the facsimile letter is not sufficient in my view. In the plaintiffs' counsel's summary of submissions, at par 4, the relevant passage from the facsimile letter is reproduced. In order to plead that there was an implied representation, as I have said, I think the material facts need to be pleaded and when one has regard to the excerpt from the facsimile letter it can be seen that the writer thereof says:
"I would think that the whole of the northern area – 27,500 square metres should be ready by the end of autumn…"
The pleader relies upon the fact that that assertion was made in the facsimile, as a factual basis for pleading there was an implied representation in par 9 to the effect that the plaintiffs "would be able to harvest turf, which was ready to be harvested as at 31 May, between 1 June and 31 August in each year of the Lease".
Paragraph 9 of the statement of claim is deficient and needs to be amended. It may be that to say that a turf area will be ready to be harvested by "the end of autumn" takes for granted that it will be harvested in the months thereafter which, notoriously, are June, July, August, etc. This should be pleaded in my view.
I do not think it can be said, as the defendant urges, that "it is not possible to make out the implication of fact pleaded from the representation" – as the defence counsel put it in par 5 of his submissions. It is possible to see what the plaintiff is trying to say in par 9 in the statement of claim. However, it is not clear and it has been poorly pleaded. I would strike out par 9 and suggest it be re‑drawn. I am not persuaded the Deputy Registrar's decision in striking out par 9 and par 12 was in error.
The defendants also raise the question of whether the claim for collateral contract has been adequately pleaded in par 10, par 11 and par 12. This seems to be an issue of some substance but it does not appear it was a matter raised before the Deputy Registrar nor that it formed the basis for the Deputy Registrar's decision in striking out par 9 and par 12. It seems to me the issue is something which the plaintiffs should address in their consideration of what amendments should be made to the statement of claim.
I now turn to the challenge made upon the Deputy Registrar's awarding of costs in favour of the defendants.
The plaintiffs complain that costs were awarded against them in spite of the fact that of some six or eight issues raised by the defendants concerning the pleading, the defendants were only successful in two of those matters.
|The Court was advised that the respondent had decided not to proceed with the majority of their complaints, save for those concerning par 9 and par 12, prior to the hearing. Counsel for the plaintiff was obviously most concerned about the wasted effort of address and the abandoned issues and of that fact not figuring in the costs order made in the defendants' favour.
The defendant argued that the costs order was appropriate because they were successful upon the only issues that remained contested.
As is apparent, par 2 of the chamber summons was in the widest terms. According to the plaintiff's counsel, par 2 necessitated unnecessary and wasted preparation that should sound in costs. Each party should bear their own costs of the chamber summons. As each party has been successful in this appeal, I similarly order that each party should bear their own costs of this appeal.