Browse Marine Pty Ltd as trustee for the Arnup Family Trust and the Deliverance Family Trust v Top Chan Pty Ltd t/as Pearl Sea Coastal Cruises

[2015] WADC 3

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BROWSE MARINE PTY LTD as trustee for THE ARNUP FAMILY TRUST AND THE DELIVERANCE FAMILY TRUST -v- TOP CHAN PTY LTD t/as PEARL SEA COASTAL CRUISES [2015] WADC 3

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   8 DECEMBER 2014

DELIVERED          :   16 JANUARY 2015

FILE NO/S:   CIV 3614 of 2011

BETWEEN:   BROWSE MARINE PTY LTD as trustee for THE ARNUP FAMILY TRUST AND THE DELIVERANCE FAMILY TRUST

Plaintiff

AND

TOP CHAN PTY LTD t/as PEARL SEA COASTAL CRUISES
First Defendant

JEFF DOUGLAS RALSTON
Second Defendant

LYNNE DIANE RALSTON
Third Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia 1971 - Application to strike out parts of a pleading - Turns on its own facts

Legislation:

Nil

Result:

Application unsuccessful

Representation:

Counsel:

Plaintiff:     B Grubb

First Defendant            :     Mr D Cobby SC

Second Defendant        :     Mr D Cobby SC

Third Defendant           :     Mr D Cobby SC

Solicitors:

Plaintiff:     Metaxas & Hager

First Defendant            :     Roe Legal Services

Second Defendant        :     Roe Legal Services

Third Defendant           :     Roe Legal Services

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

Nil

1. DEPUTY REGISTRAR HARMAN:  By its re-amended statement of claim filed 6 October 2014 the plaintiff asserts breach of contract by the first defendant and claims damages, a declaration and an account.  Against each defendant it alleges misleading and deceptive conduct for which it seeks damages.  The causes of action arose in the context of the plaintiff's purchase of the first defendant’s business.

2. By application made 24 October 2014, the defendants seek to strike out the pleading struck out and to have the action dismissed, alternatively to strike out parts of pars 16A and 17.3 along with the whole of pars 20.3 and 20.4.

3. The applicants carry the onus of persuasion that it is appropriate to so order.    According to the respondent, consideration ought to be given to the impact of time and the limited extent of conferral.

4. At the hearing the applicants made no particular submissions in support of the first part of the application although the scope of their submissions exceeded the terms of the second.

5. Although the re-amended pleading followed reasonably closely upon the amended pleading, there is no basis upon which to conclude that what had been canvassed between the parties in the interim would provide grounds to consider that it remains open to the defendants to strike out pleading introduced by the amended statement of claim.  In any event there is nothing to justify extending the scope of the application beyond its terms.

6. At par 16A the plaintiff pleads as follows:

   By reason of the first defendant's conduct in making the oral, written and implied representations as pleaded in par 9 to 14 above, and the reliance thereon by the plaintiff, as pleaded in par 16 above, the first defendant is hereby estopped from asserting that it did not otherwise agree to account to the plaintiff for any profit it received in respect of the DEC and/or service contracts.

7. The allegation is founded upon representations made by the defendants in the period after purchase but prior to settlement.

8. According to the application, the words 'the first defendant is estopped from asserting that it did not otherwise agree to account to the plaintiff for any profit it received in respect of the DEC and the service contracts' ought be struck out on the ground that they disclose no reasonable cause of action, further or alternatively, that the allegation is frivolous or vexatious, further or alternatively, embarrassing and made prejudice the fair trial of the action.

9. According to the applicant's submissions, to the extent that the plaintiff's case draws upon the pleaded written and implied representations the allegation is untenable.

10. The pleaded written representations are identified by three specified communications between the parties.  Those conveyed by the first were that the benefit of service contracts would be for the plaintiff and that if they could not be assigned by the first defendant, services under those contracts would be provided in the name of the first defendant.    The second relates to the proposed provision of  such services; the third, to a particular future service.

11. The applicants' contend that the scope of the first would be limited by the context and I take it, would be no more extensive than the scope provided by the second.

12. Their case can be put no higher than contention as there is no useful evidence to establish the context in which the representations had been made.  That the applicants' solicitor describes copies of the communications attached to his affidavit as true copies does not establish their content as evidence.

13. The implied representations are pleaded as having been informed by the written communications.  The applicants' case was that their success in relation to the written representations would have a consequential impact.

14. It follows that there is no basis upon which to determine that the particular allegations in par 16A be struck out.

15. At par 17 the plaintiff pleads:

    Further and/or in the alternative to pars 8 – 16 above, and by reason of the matters pleaded in pars 4 to 9 above, the first defendant breached the contract by failing to:

    17.1Deliver up all documents to transfer the service contract to the plaintiff at settlement [condition 7.2(a)(iv)];

    17.2Transfer the Service Contracts to the plaintiff at settlement [clause 3.1 and condition 7.2(a)(iv), (d) and (e) and 11.1 and 12.4(b)]; and

    17.3Contrary to its Written Representations made prior to settlement, by failing to pay, or account to the plaintiff for any profits it received from the Service Contracts [condition 12.1(a) and par 9 of the statement of claim].

16. According to the application at the words 'the first defendant breached the contract, contrary to its Written Representations made prior to settlement by failing to pay or account to the Plaintiff for any profits received from the service contracts' ought be struck out.

17. Their case rests on the fact that there is no pleading that the representations were part of the contract.

18. The complicating features of that case are that the contested pleading was not introduced by re-amendment of the pleading and that there is nothing to suggest any relevant conferral.

19. In the circumstances par 17.3 will not be struck out.

20. At pars 20.3 and 20.4 the plaintiffs express claims for a declaration that all profits received by the first defendant under the service contracts accrue to the plaintiff and that there be an account of those profits.  Those pleadings have stood in unamended form since the action commenced.  There is no justification for striking them out.