Carter v Schmitt

[2005] NSWSC 956

CITATION:	Carter v Schmitt [2005] NSWSC 956
HEARING DATE(S):	17 February and 18 May 2005
JUDGMENT DATE :	23 September 2005
JURISDICTION:	Equtiy Division
JUDGMENT OF:	Associate Justice McLaughlin at 1
DECISION:	Unless any party within seven days of the date hereof arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders: (1). I order that the cross-claim be struck out, and that the Defendants have leave to file an amended cross-claim on or before 7 October 2005. (2). I order that the amended notice of motion filed by the Plaintiff on 8 December 2004 be otherwise dismissed. (3). I order that the costs of the aforesaid notice of motion be the costs of the Defendants in the proceedings, subject to the Defendants paying the costs of and occasioned by the filing of an amended cross-claim. (4). I order that the notice of motion filed by the Defendants on 29 September 2004 be stood over generally, with liberty to restore to the list on seven days' notice.

CATCHWORDS:	Practice. Summary judgment. Judgment on admissions. Summary dismissal of cross-claim. Striking out of pleading.
LEGISLATION CITED:	Fair Trading Act 1987 Fair Trading Amendment Act 2003 Supreme Court Rules
CASES CITED:	Clarke v The Union Bank of Australia Limited (1917) 23 CLR 5 Johnstone v HIH Insurance Limited [2004] FCA 1414. Jobbins v Capel Court Corporation Limited (1989) 91 ALR 314 Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 GPI Leisure Corporation Limited v Yuill (6 August 1997, unreported) Hawker Noyes Equipment Pty Limited v Dueeasy Pty Limited (18 July 1996, unreported) Jones v Stone [1894] AC 122 Kent v Ireland (No. 2) [2004] NSWSC 870 Meade v Haringey Council [1979] 1 WLR 637 New Brunswick Railway v British & French Trust Corporation Limited [1939] AC 1 Pasley v Freeman (1789) 3 TR 51; 100 ER 450 Singh v Singh [2004] NSWSC 850 Singh v Varinder Kaur (1985) 61 ALR 720 Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [1998] 525 FCA
PARTIES:	Keith Carter (Plaintiff) John Francis Smith (First Defendant) Margaret Rose Schmitt (Second Defendant) Andrew John Schmitt (Third Defendant) Mark Frederick Smith (Fourth Defendant)
FILE NUMBER(S):	SC 4787 of 2003
COUNSEL:	M. A. Bradford (Plaintiff) J. W. Dodd (Defendants)
SOLICITORS:	Booth Brown Samuels & Olney (Plaintiff) Stacks Goudkamp (Defendants)

LOWER COURT JURISDICTION:

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 23 September 2005

4787/03 - KEITH CARTER V JOHN FRANCIS SCHMITT and
Ors

JUDGMENT

1 HIS HONOUR: By amended notice of motion filed on 8 December 2004 the Plaintiff, Keith Carter, claims summary judgment pursuant to Part 13 rule (1) of the Supreme Court Rules in respect to certain declaratory relief sought in the statement of claim; and, or in the alternative, judgment on admissions in respect to part of that declaratory relief sought in that statement of claim, pursuant to Part 18 rule (3) of the Supreme Court Rules.

2 Further, the Plaintiff seeks summary dismissal, pursuant to Part 13 rule 5(1) of the Supreme Court Rules, of certain of the claims for relief made by the Defendants in their cross-claim.

3 By notice of motion filed on 29 September 2004 the Defendants seek orders in respect to the filing by the Plaintiff of a defence to the cross-claim of the Defendants, and in respect to the filing by the Plaintiff of a verified list of documents.

4 It is appropriate that I should proceed to deal first with the amended notice of motion of the Plaintiff, since, in the event that the Plaintiff be successful in that application, especially in regard to summary dismissal of parts of the Defendant’s cross-claim, it will be unnecessary for me to proceed to a consideration of the application by the Defendant.

5 The substantive proceedings were instituted by summons filed by the Plaintiff, Keith Carter, on 10 September 2003. That summons named as Defendants John Francis Schmitt, Margaret Rose Schmitt, Andrew John Schmitt and Mark Frederick Schmitt. Subsequently, after various interlocutory applications had been made and after various directions had been given, the Plaintiff on 11 May 2004 filed a statement of claim. On 9 July 2004 the Defendants filed a defence and a cross-claim. The cross-claim named the Plaintiff as the cross-defendant. No defence has been filed to the cross-claim.

6 The proceedings arise out of disputes in relation to two share farming agreements which were entered into by the Plaintiff and the Defendants (who carried on business as farmers in partnership under the name “JF & MR Schmitt and Sons”) in September 1997 (“the 1997 agreement”) and in November 1998 (“the 1998 agreement”) respectively. The 1997 agreement was for a term of one year and the 1998 agreement was for a term of three years with an option to extend that term for a further three years.

7 It was common ground that under each of the aforesaid two agreements the Defendants grew various crops on the rural property known as Maybrook which, at the material times, was owned by the Plaintiff and his wife Glenda Louise Carter.

8 By the statement of claim the Plaintiff allege that the Defendants were in breach of various terms of the 1998 agreement, and that the effect of those breaches was that the Defendants were not at the material times in a position to validly exercise the option to renew the agreement (which the Defendants had purported to exercise on 30 June 2003), and that the Plaintiff, as he was entitled to do, elected to bring the agreement to an end on expiry of the head term on 4 November 2003, if not earlier. By the statement of claim the Plaintiff sought declaratory relief, first, that the Defendants had not validly exercised the option to renew the agreement, and, second, that the agreement was brought to an end by effluxion of time on 4 November 2003; and sought damages.

9 By their defence the Defendants deny certain of the alleged terms of the agreement and assert that the option to renew the agreement was validly exercised by them on 10 December 2003.

10 The Defendants by their cross-claim allege that in or about June 1997 the Plaintiff represented to them that the bore known as the “Road Bore” on Maybrook had been pump tested and could supply 30,000 gallons per hour of water, and that that representation was untrue and was known by the Plaintiff to be untrue. Further, that the Plaintiff intended the Defendants to act on that representation, and that in reliance upon that representation the Defendants entered into the share farming agreements with the Plaintiff of September 1997 and November 1998; but that in attempting to carry out farming activities in accordance with those share farming agreements they were hampered by lack of water supply from the Road Bore. It is alleged in the cross-claim that the Plaintiff was fraudulent and/or deceitful.

11 The cross-claim also alleges certain breaches by the Plaintiff of the 1997 agreement and of the 1998 agreement. It is further alleged by the cross-claim that the Defendants in 1999 instituted proceedings against the Plaintiff in the Supreme Court (proceedings 5072 of 1999) regarding a dispute arising out of the 1998 agreement, and that those proceedings were settled by way of consent orders on 21 December 1999. It is alleged that at the time of the settlement of those proceedings the Defendants were unaware of the falsity of the representation made by the Plaintiff concerning the Road Bore.

12 The Defendants allege that as a result of each or any of the following matters they have and will suffer damage:

(a) The fraud and/or deceit on the part of the Cross-Defendant

(b) The breaches by the Cross-Defendant of the 1997 contract and the 1998 contract

(c) The Cross-Defendant being in breach of section 42 of the Fair Trading Act 1987

(d) The Cross-Defendant refusing to accept the Cross-Claimants’ valid exercise of the option to renew the 1998 contract.

13 By the cross-claim the Defendants seek an order (more appropriately, a declaration) that they are not bound by the agreement between the parties set forth in paragraph 2 of the Short Minutes dated 21 December 1999 in proceedings 5062 of 1999, due to the fraudulent and/or deceitful conduct of the Plaintiff; together with damages and interest thereon.

14 The foregoing agreement referred to in the relief sought by the Defendants is set forth in Short Minutes of Order dated 21 December 1999 in proceedings 5062 of 1999, which Short Minutes are annexure C to the affidavit of Keith Carter sworn 8 September 2003 in the present proceedings. The relevant paragraph is in the following terms.

The Court notes the agreement of the parties:
….
2. That the parties mutually release each other from all claims, proceedings and demand [ sic ] in respect of any events arising howsoever from the agreements dated 11 September 1997 and 4 November 1998 including any matter ancillary to or connected with those agreements or the Plaintiffs use of the Defendant’s land up to and including 17 December 1999.

15 I have had the benefit of receiving written outlines of submissions from Counsel for the respective parties, together with a chronology from Counsel for the Plaintiff. Those documents will be retained in the Court file.

16 The Plaintiff’s application for summary judgment is brought pursuant to the provisions of Part 13 rule 2(1) of the Supreme Court Rules. That subrule provides,

Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the Plaintiff -
(a) there is evidence of the facts on which the claim or part is based; and
(b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed,
the Court may, by order, on terms, give such judgment for the Plaintiff on that claim or part as the nature of the case requires.

17 It will be appreciated that the present application by the Plaintiff for summary judgment seeks summary judgment only in the terms of the declaratory relief claimed in the statement of claim, and not in any specific monetary amount.

18 The alternative relief sought by the Plaintiff in the amended notice of motion is that the declaratory relief claimed in prayer 1 of the statement of claim be made on the admissions pleaded in the defence, pursuant to Part 18 rule 3(1) of the Supreme Court Rules.

19 That subrule provides,

Where admissions are made by a party, whether by his pleading or otherwise, the Court may, on the application of any other party, give any judgment or make any order to which the applicant is entitled on the admissions.

20 In support of the application for summary judgment it is submitted on behalf of the Plaintiff that the facts which underpin the application are not in dispute. The Plaintiff points to what he says are admissions by the Defendants in their verified defence that they are in breach of their obligation to remunerate the Plaintiff for his share of the August 2001 wheat crop (although it is recognised by the Plaintiff that the Defendants dispute the amount to which the Plaintiff is entitled under the terms of the 1998 agreement). Further, the Plaintiffs point to what they state is clear and uncontradicted evidence to that effect (paragraphs 48 to 50 of the affidavit of the Plaintiff sworn 8 December 2003).

21 In Hawker Noyes Equipment Pty Limited v Dueeasy Pty Limited (18 July 1996, unreported) the Court of Appeal of New South Wales referred to judgments of the highest authority concerning the circumstances in which it is appropriate for summary judgment to be given for a party to contested proceedings. Sheller JA (with whom Meagher JA agreed and with whom, in regard to the following principles, Cole JA, although dissenting, was also in agreement) said,

In Clarke v The Union Bank of Australia Limited (1917) 23 CLR 5 Barton ACJ, speaking for the High Court of Australia, quoted Lord Halsbury in Jones v Stone [1894] AC 122 at 124 who said that an analogous proceeding for summary judgment was peculiar, “intended only to apply to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment, and where, therefore, it is inexpedient to allow a defendant to defend for mere purposes of delay”. In Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 99 the High Court of Australia said that the power to order summary or final judgment was one that should be exercised with great care and should never be exercised unless it was cleat that there was no real question to be tried. In that case their Honours said it was not possible to say “without doubt, on the whole of the material, that there is no question to be tried”. In Singh v Varinder Kaur (1985) 61 ALR 720 at 722 Samuels JA, with whom Kirby P and Glass JA agreed, after referring to Fancourt , said:

“That language suggests to me that the burden lies on the plaintiff seeking summary judgment of persuading the tribunal that there is no real question to be tried. It is not consistent with the reverse proposition - that the defendant resisting judgment must show that there is a real question to be tried.”

22 It will be appreciated, therefore, in the instant case, that it is for the Plaintiff to persuade the Court, in respect to the claim for declaratory relief, first, that the Defendants have not validly exercised the option to renew the 1998 agreement, and then that, in the events which have occurred, the agreement was brought to an end by effluxion of time on 4 November 2003. It is for the Plaintiff to establish that on those matters – the entitlement of the Defendants to exercise the option to renew the 1998 agreement, and the termination of that agreement by effluxion of time on 4 November 2003 – there is no real question to be tried. In any event, the granting of such summary judgment is a discretionary remedy, in respect to the granting whereof the Court must act in accordance with the principles relating to exercise of judicial discretion.

23 It will also be appreciated that declaratory relief is not ordinarily available on a summary basis, although the Court is not precluded from granting such summary relief in appropriate circumstances. In GPI Leisure Corporation Limited v Yuill (6 August 1997, unreported) Young J (as he then was) said,

There is no doubt that it is competent for the court to make a declaration on an application for summary judgment, but it will only be in exceptional cases that the court will do so. Although courts have become more venturesome since 1939, what was said by Lord Maugham, LC in New Brunswick Railway v British & French Trust Corporation Limited [1939] AC 1 at 22, for the greater part still holds good. His Lordship said, “I think it right to observe that it is in my view undesirable that judges should make declarations as to the true construction of documents on motions for judgment in default on defence. It has not, I believe, been the practice to do so in the Chancery Division for a good many years. As far as possible the Court should make such declarations only when the matter has been argued by counsel on each side, and is then subject to adjudication by the judge.” See also Lord Russell at page 28 and Meade v Haringey Council [1979] 1 WLR 637 at 657.
Zamir and Woolf on The Declaratory Judgment , 2ed, 264 put it this way, “If the proceedings are begun by writ, final declarations can be obtained on an application for summary judgment under RSC, Ord 14. Where a party is in default, for example, in entering an appearance or in delivering a pleading, it is possible to obtain a judgment, including a declaration. However, the courts will generally be reluctant to grant a declaration as part of a default judgment in the absence of any defence and argument. Before the court grants a declaration it wants to be sure, as in the case of an injunction, that it is appropriate to grant that relief”.

24 (I should record, for completeness, that the Plaintiff also relied upon the decision of Gzell J in Kent v Ireland (No. 2) [2004] NSWSC 870, where the terms of an option were not relevantly distinguishable from the terms of the option in the instant case.)

25 It was submitted on behalf of the Plaintiff that it is appropriate in the instant case to grant summary judgment by way of declarations in order, first, to achieve, a narrowing of the issues at any trial, and, second, to relieve the parties of the need to address what were identified by Counsel for the Plaintiff as relatively complex issues regarding damages claimed by the Defendants in consequence of the alleged refusal of the Plaintiff to permit the Defendants to exercise their option to renew the 1998 agreement. The Plaintiff in this latter regard points to the head of damage asserted by the Defendants in their cross-claim in respect to an alleged loss of opportunity consequent upon the conduct of the Plaintiff in “failing to honour the valid exercise of the option to renew” by the Defendants.

26 But the foregoing submissions of the Plaintiff disregard a fundamental factor which appears to me to be vital not only to the present application by the Plaintiffs but to the resistance by the Defendants to the claim made by the Plaintiff, which would underpin any entitlement of the Plaintiff to declaratory relief and which, in any event, is the basis of the cross-claim of the Defendants. That is, that in respect to the entirety of the contractual arrangements between the Plaintiff and the Defendants regarding each of the 1997 agreement and the 1998 agreement and in respect to the releases given in the 1999 proceedings arising out of alleged breaches of the 1997 agreement the Plaintiff had been guilty of fraud relative to a fundamental representation made by him, upon which representation each of the foregoing agreements and the release was based, and that the Defendants in consequence thereof had against the Plaintiff a cause of action in deceit.

27 The Defendants should not be deprived of an opportunity of having the foregoing assertions, which are of a most serious nature, determined after a final hearing, at which the evidence of the respective parties regarding this important matter can be tested, and after appropriate interlocutory procedures are availed of by the parties.

28 Consonant with the foregoing admonition of the High Court of Australia in Fancourt, that the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried, I am not disposed to order summary judgment in favour of the Plaintiffs in circumstances where the effect of that summary judgment would merely be to deal with the question of the validity of the exercise of an option and the date of the termination of the 1998 agreement, when a far more fundamental question, concerning the validity of that agreement itself, and thus the entitlement of the Defendants to exercise the option, remains outstanding and unresolved by the summary judgment. Further, I am not, in any event, persuaded that this is an appropriate case for the granting of declaratory relief by way of summary judgment.

29 The Plaintiff also relies upon the admissions contained in paragraphs 3 and 4 of the defence, as entitling the Plaintiffs to summary judgment by way of the declaratory relief sought in the statement of claim.

30 The power of the Court to award judgment upon admissions pursuant to Part 18 rule 3(1) of the Supreme Court Rules is also a discretionary power, which is also to be exercised in accordance with the principles relating to exercise of judicial discretion.

31 The views which I have already expressed concerning the Plaintiff’s claim to be entitled to summary judgment by way of declaratory relief have equal application to the Plaintiff’s claim for judgment upon admissions by way of declaratory relief.

32 The balance of the relief claimed by the Plaintiff in the amended notice of motion relates to the cross-claim of the Defendants. Paragraph 15 of the cross-claim contains prayers for relief by way of what is described as an order (but is more appropriately in the nature of a declaration) that the Defendants are not bound by the release which was part of the agreement disposing of the 1999 proceedings, “due to the fraudulent and/or deceitful conduct” of the Plaintiff (paragraph 15(a)); together with damages (paragraph 15(b)); and interest upon such damages (paragraph 15(c)).

33 By the amended notice of motion the Plaintiff seeks summary dismissal, pursuant to Part 13 rule 5(1)(a) of the Supreme Court Rules, of the claims in the cross-claim for the declaratory relief sought in paragraph 15(a) and for damages sought in paragraph 15(b) in so far as those claims relate to or arise from events which occurred before the date on which the release was given, that is, 17 December 1999, and/or from the alleged failure of the Plaintiff to renew the 1998 agreement and/or from the alleged breach or breaches of section 42 of the Fair Trading Act 1987.

34 The relief sought by the Plaintiff in respect to the Defendant’s claim for declaratory relief and in respect to the release and in respect to the Defendant’s claim for damages which predate that release can be dealt with together.

35 Part 13 rule 5(1) of the Supreme Court Rules provides, relevantly,

Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings –
(a) no reasonable cause of action is disclosed;
…
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

36 The Plaintiff submitted that the case pleaded by the Defendants in the cross-claim in respect to a cause of action in fraud or in deceit rests entirely on the making of an oral representation alleged by the Defendants to have been made by the Plaintiff concerning the capacity of the Road Bore. The Plaintiff recognises that there are very live factual disputes on the evidence about whether a representation in the alleged terms was in fact made by the Plaintiff, and the Plaintiff accepts that an issue as to whether there was such an oral representation was made is ordinarily a triable issue.

37 However, it is submitted on behalf of the Plaintiff that in order to avoid the release on the basis of such a representation the Defendants must establish not only that the representation was made (which the Court is invited by the Plaintiff to assume for the purposes of the present application), but that that representation induced the Defendants to enter into and carry out the 1997 agreement and the 1998 agreement and that the representation induced them to act to their detriment by giving the release in December 1999. (The Plaintiff in this regard referred to my decision in Singh v Singh [2004] NSWSC 850 at paragraph 25, concerning the elements of the tort of deceit. That tort has its origins in the decision of the Court of King’s Bench (constituted by Lord Kenyon CJ and Grose and Buller JJ) in Pasley v Freeman (1789) 3 TR 51; 100 ER 450. See, also, Fleming The Law of Torts, 9ed. (1998), 694f.)

38 The Plaintiff then refers to various parts of the affidavit evidence on behalf of the Defendants, and submits that in the light of that evidence “there can be no real doubt that the Defendants’ claim for a declaration to avoid the release on the basis of the oral representation is bound to fail”. Essentially, it is submitted on behalf of that Plaintiff that upon either or both of the pleaded case of the Defendants in the cross-claim and the evidence of the Defendants, the Defendants were well aware that the Road Bore did not have the capacity which, so the Defendants allege, the Plaintiff represented it to have.

39 However, it seems to me that the foregoing submission disregards the clear terms of the cross-claim (a representation which was untrue and known by the Plaintiff to be untrue, intended by the Plaintiff to be acted upon by the Defendants, reliance by the Defendants upon the representation and consequent damage suffered thereby). The Defendants should not be deprived of the opportunity of having their claim determined at a final hearing, after, first, the Plaintiff has filed a sworn defence to the cross-claim, and then the parties have had an opportunity to avail themselves of discovery and interrogatories.

40 I also here observe that Counsel for the Defendants submitted that what was here asserted by the Defendants was a concealment of the deceit, rather than a fraudulent representation. That submission does not, however, entirely accord with the form of the cross-claim and the allegations contained therein. I am in agreement with the Plaintiff that the Defendants have not pleaded a case based on fraudulent concealment. Nevertheless, the Defendants in this regard rely upon evidence that, when asked about the capacity of the Road Bore by the Defendants, the Plaintiff concealed what is alleged by the Defendants now to constitute the fraud. The Defendants rely upon that concealment as grounding the release given by them in the consent orders in the 1999 proceedings, and submit that the existence of those consent orders thereafter affected the entirety of the dealings and the relationship between the parties until December 1999.

41 I am in agreement with the submission made on behalf of the Defendants that the allegation of fraud, which is one of the most serious allegations which can be made by a party to litigation against another party, should be fully explored at a final hearing. It was submitted by the Defendants that this allegation should not be thwarted by the present application for summary judgment, and that it should be emphasised that such an allegation should not be disposed of in a summary fashion before the Court has seen the response to the allegation, which should be made by way of a verified defence.

42 I am in agreement with the submission on behalf of the Defendants that where, as here, there is an allegation of fraud made against the Plaintiff and where the cause of action pleaded by the Defendants in their cross-claim is a cause of action in deceit grounded upon that fraud, it is premature to give summary judgment before particulars have been sought and furnished and before the Plaintiff has filed a verified defence responding to the allegation of fraud made against him.

43 For the foregoing reasons, I am not satisfied that in the exercise of the Court’s discretion it is appropriate that the claims for relief sought in paragraph 15(a) of the cross-claim should be dismissed upon the ground that no reasonable cause of action is disclosed.

44 The claim of the Defendants for damages includes a claim in respect to the loss of opportunity to continue share farming from November 2003 to 4 November 2006, that being the period of the option which the Defendants assert they were precluded from enjoying by reason of the conduct of the Plaintiff. It was submitted on behalf of the Plaintiff that a dismissal of that claim for damages during the extended term of the 1998 agreement would follow automatically in the event that the Court were disposed to grant the declaratory relief by way of summary judgment sought by the Plaintiff in his present application. Since I am not disposed to grant that relief, the basis for the foregoing submission no longer has effect.

45 But, in any event, the claim for damages for the extended period of the 1998 agreement is, as I understand the submissions of the Defendant, based upon the fact that the representation by the Plaintiff was a representation of what was described by Counsel for the Plaintiff as being of a “continuing nature”. Further, even if I were not to be in agreement with such a submission, I am not satisfied that the Plaintiff has demonstrated that such a claim is without substance or is doomed to failure.

46 The final part of the Plaintiff’s application for dismissal of the cross-claim relates to the Defendant’s claim under the Fair Trading Act (paragraph 13(c)). Section 42 of that Act provides, in subsection (1) thereof,

A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

47 As I understand it, it is the case for the Defendants that the conduct on the part of the Plaintiff complained of in the cross-claim (in particular, the conduct relied upon as constituting fraud and as giving rise to the cause of action for the tort of deceit) constitutes a contravention of section 42 of the Fair Trading Act. Section 68 of that statute makes a provision for actions for damages resulting from contravention of various provisions of the Act, including section 42. The limitation period under section 68(2) is now a period of six years after the day on which the cause of action that relates to the conduct complained of accrued, by virtue of the Fair Trading Amendment Act 2003 (which by proclamation of 20 August 2003 was appointed to commence on 25 August 2003). Before that date the relevant limitation period was three years, and by Clause 11D (7) of Schedule 5 (Savings and Transitional provisions) to the 2003 Act, the provisions of section 68(2) in force immediately before the commencement of the amendment to that section by the amending Act, continue to apply to or in respect of a cause of action accruing before that commencement as if the amendment had not been made.

48 It was submitted on behalf of the Plaintiff that, in consequence, the cause of action asserted by the Defendants as resulting from the alleged contravention of section 68(1) of the Act is defeated in consequence of the present claim having been made after the expiry of three years from the accrual of the cause of action. It was submitted on behalf of the Plaintiff that the cause of action accrued, at the latest, by November 1997.

49 The Defendants respond to that submission, however, by pointing out, first, that the representation attributed to the Plaintiff was of a continuing nature, and that such representation continued after November 1997. (In this regard the Defendants rely upon the decision of the Full Court of the Federal Court of Australia in Jobbins v Capel Court Corporation Limited (1989) 91 ALR 314, especially at 318-319.) Further, that the claim of the Defendants under the Fair Trading Act depends upon expert evidence, which evidence has not yet been filed (because, according to the Defendants, of the default of the Plaintiff in complying with various timetables ordered by the Court). If the representation be treated as being of a continuing nature, and if reliance upon that representation also be treated as being in the nature of a continuing reliance, then the accrual of the cause of action is not confined to the first making of the representation. The consequence of the representation being of a continuing nature is, therefore, that the three year limitation period had not expired before the institution of the proceedings on 11 May 2004 or before the filing of the cross-claim on 9 July 2004.

50 I am not satisfied that the foregoing submission concerning the continuing nature of the asserted representation is one which is hopeless or is doomed to failure. In those circumstances, therefore, I do not consider that the claim of the Plaintiff grounded upon alleged contravention of section 68 of the Fair Trading Act should be the subject of summary dismissal upon the ground that such claim is defeated by the expiry of the relevant limitation period.

51 However, the Plaintiff complains, and I consider with a degree of justification, that the form of the pleading in respect to a cause of action grounded upon contravention of section 68 does not attempt to link the allegation of such contravention with any of the pleaded facts which precede it. The Plaintiff complains that this lack of nexus makes it impossible for the Plaintiff to identify the factual basis upon which section 42 of the Act is alleged to be activated. The Plaintiff submits that the form of the pleading in this regard is defective, and relies upon such decisions as Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [1998] 525 FCA and Johnstone v HIH Insurance Limited [2004] FCA 1414.

52 I am in agreement with the complaints of the Plaintiff regarding the form of the pleading of his alleged contravention of section 42 of the Act, in that the pleading lacks both specificity and particularity, sufficient to enable the Plaintiff to know what is alleged against him. Accordingly, I propose to strike out that part of the pleading, and in due course I will give to the Defendants leave to replead.

53 I am also in agreement with the complaint made by the Plaintiff concerning the form of paragraph 12 of the cross-claim, asserting a cause of action in conversion, that that paragraph does not allege any consequent damage or the nature of any such damage.

54 Similarly, the Plaintiff complained concerning the form of paragraphs 13 and 14. There is no attempt to link the particular wrongdoing alleged in paragraph 13 with any of the damages alleged in paragraph 14. The Plaintiff also submits that paragraph 14, which purports to set forth the damage suffered by the Defendants, contains allegations which are inherently confusing (as is also submitted in respect to paragraph 2 (d)(ii)). I am in agreement that the form of paragraph 14 is defective, and that on that account that paragraph will be struck out, with leave to replead.

55 It is submitted that on behalf of the Plaintiff that the cross-claim contains inconsistent allegations; for example, it is asserted that paragraph 10(c) is inconsistent with each of paragraphs 2(b)(v) and 2(c)(ii). I do not agree that paragraph 10(c) is inconsistent with the foregoing allegations contained in paragraphs 2(b)(v) and 2(c)(ii), and I do not consider that those paragraphs should on that account be struck out.

56 However, for the reasons which I have already given, I consider that the form of parts of the pleading, being paragraphs 12, 13 and 14, is defective. In consequence, I propose to order that the cross-claim be struck out, and that the Defendants be granted leave to file an amended cross-claim within a specified period.

57 It follows, therefore, that the relief sought by the Defendants in their notice of motion of 29 September 2004 is premature, since the Plaintiff must be given an opportunity to consider the form of any amended cross-claim, before being required to file a defence thereto. Accordingly, it is appropriate that the Defendant’s notice of motion filed on 29 September 2004 should be stood over generally, with liberty to restore.

58 Although the Plaintiff has succeeded in having the cross-claim struck out, nevertheless the major part of the hearing was devoted to the Plaintiff’s application for summary judgment or, alternatively, judgment on admissions, by way of declaratory relief, and the Plaintiff was unsuccessful in his application in that regard. It seems to me, therefore, that the appropriate costs order to be made is that the costs of the amended notice of motion filed by the Plaintiff on 8 December 2004 should be the costs of the Defendants in the proceedings, subject to the Defendants paying the costs of the Plaintiff of and occasioned by the filing of an amended cross-claim. If, however, any party wishes to apply for some other costs order, an opportunity will be given to that party to do so.

59 Accordingly, unless any party within seven days of the date hereof arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders:

(1). I order that the cross-claim be struck out, and that the Defendants have leave to file an amended cross-claim on or before 7 October 2005.

(2). I order that the amended notice of motion filed by the Plaintiff on 8 December 2004 be otherwise dismissed.

(3). I order that the costs of the aforesaid notice of motion be the costs of the Defendants in the proceedings, subject to the Defendants paying the costs of and occasioned by the filing of an amended cross-claim.

(4). I order that the notice of motion filed by the Defendants on 29 September 2004 be stood over generally, with liberty to restore to the list on seven days’ notice.

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