Cachia, Salv Laurence v Westpac Financial Services Ltd in the Matter of Westpac Real Property Growth Trust

[1996] FCA 1146

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
NEW SOUTH WALES DISTRICT REGISTRY  )       No NG 3723 of 1996
GENERAL DIVISION                 )

BETWEEN:

SALV LAURENCE CACHIA
  Applicant

AND:

WESTPAC FINANCIAL SERVICES LTD (IN THE MATTER OF WESTPAC REAL PROPERTY GROWTH TRUST)
  Respondent

CORAM:Lindgren J

PLACE:Sydney

DATE:18 December 1996

REASONS FOR JUDGMENT

Introduction
There is before the Court a motion brought by notice of motion filed by the respondent on 27 November 1996.  That motion seeks relief in relation to a subpoena which was issued by the applicant.  However, when the matter was before the Court on the last occasion, 13 December 1996, there was extensive argument in relation to the form of the application and the supporting affidavit.  The respondent seeks an order that a statement of claim be filed.  It says that it has great difficulty in discerning from the application the cause of action, or causes of action, on which the applicant relies.

On 13 December 1996, when it became clear that the relief
which the applicant was seeking was an award of damages, I directed that the applicant file and serve, by 5.00 pm on 17 December 1996, an amended application to claim damages and "points of claim".  The applicant filed both on 16 December 1996.

Amended application
The amended application claims, in paragraph 5, damages for loss suffered by the applicant.  There is included, as well, a claim for exemplary damages.  In these respects the amended application does what the direction required.  However, paras 1 to 4 of the amended application are problematical in that they seem to be attempts to state grounds of relief.  Since they do not claim "relief" and do no harm, they can be ignored.  The proceeding may henceforth be treated simply as one in which the applicant claims damages and exemplary damages.

There does remain a real problem with the amended application.  That is to be found in the first four lines of that document.  Those four lines read as follows:

"Application under the provisions governing unlisted Trusts sec 1076A-1076ZC of the Corporations Act 1989 & Law; the Trade Practices Act 1974 sec 52; the Common and Equity law; and any other relevant provision or Act."

This is unsatisfactory, having regard to the requirement of Order 4 sub-rule 3 (1) (b). The material quoted does not inform the Court or the respondent of the "provision" of any Act relied upon. The reference to ss 1076A to 1076ZC of the Corporations Act 1989 and the Corporations Law does not do so since, of their nature, many of the provisions contained in those sections are, on any reckoning, not relevant to the applicant's case. Moreover, the reference to "any other relevant provision or Act" is embarrassing and should be omitted, or alternatively, the particular provision or particular provisions of any other Act on which the applicant relies should be specified.

The reference to "the Common and Equity law" should also be omitted. 

What the applicant must do is to identify those particular provisions contained in ss 1076A to 1076ZC of the Corporations Law or of any other Act on which the relief of damages which he seeks depends. Order 4 sub-rule 3 (1) (b) requires him to do that.

Points of claim
In relation to the points of claim there are great problems.  I will not attempt to deal with all of them in these Reasons for Judgment.  It suffices to say that I find it difficult to understand precisely what the cause of action is, or causes of action are, on which the applicant relies.  In the course of the debate this morning it did appear that a breach of contract is attempted to be pleaded in paragraph 4 but in order to appreciate that this is so, it is necessary to link up para 4 with paras 9 and 12.  The connection is obscure.

Paragraph 6 begins:

"The respondent gave the said members an "information memorandum and notice of meeting" in which it wrongly proposed and wrongly recommended an extraordinary resolution for the meeting to consider, and if thought fit, pass."

The points of claim do not, however, indicate in what respect or respects it is said that the proposal and recommendation for an extraordinary resolution were made "wrongly". There are numerous uses of the word "wrongly" in the document, sometimes in association with the word "contumeliously": see, for example, paragraphs 8, 9, 10, 11, 12 and 13. It will be necessary for the applicant to indicate in what respect or respects the respondent's conduct was wrong in law, that is to say, so as to entitle him to the legal remedies of damages and exemplary damages. Perhaps he intends to say that there was a breach of contract, or perhaps, that there was misleading or deceptive conduct in contravention of section 52 of the Trade Practices Act 1974. Perhaps his case is that the proposal and recommendation were made "wrongly" because the making of them contravened a particular provision of the Corporations Law. I do not know. On the hearing he disavowed a cause of action in negligence.

Another problem is that paras 18 to 23 plead "without prejudice" settlement discussions or negotiations.  Although in some circumstances the mere fact that negotiations are without prejudice might not preclude the pleading of them, it is not clear by any means that the allegations in those paragraphs form part of any cause of action on which the applicant relies.

There are yet further difficulties with the points of claim.  Perhaps the summary of the document is that it is simply so obscure in stating the nature of the wrong or wrongs which the applicant hopes to establish, as to contribute little or nothing to the identification of the claims which the respondent must answer and which the Court must determine.

The respondent merely seeks at this stage that a statement of claim be filed and I think that this should be done.  The applicant says that the respondent should be ordered to request particulars of any paragraph which it does not understand and I think that there is some merit in this submission too. 

Conclusion
Accordingly, the orders of the Court will be as follows.  First, I direct the applicant to file and serve a further amended application and a statement of claim by 31 January 1997.  I direct the respondent to request particulars of any paragraphs in the statement of claim of which it wishes to seek particulars by 14 February 1996.  I stand over the respondent's motion otherwise to 28 February 1996 at 9.30 am. 

I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Secretary:

Dated:24 December 1996

Heard:        13, 18 December 1996

Place:        Sydney

Decision:     18 December 1996

Appearances:   The applicant appeared in person.

Mr N Perram of counsel instructed by Mallesons Stephen Jaques appeared for the respondent.