Catlin v National Australia Bank Ltd
[2003] WASC 97
CATLIN & ANOR -v- NATIONAL AUSTRALIA BANK LTD & ANOR [2003] WASC 97
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 97 | |
| Case No: | CIV:2200/2002 | 25 MARCH & 24 APRIL 2003 | |
| Coram: | MASTER NEWNES | 21/07/03 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Statement of claim struck out | ||
| B | |||
| PDF Version |
| Parties: | ADRIENNE MARIE CATLIN ADRIAN CHARLES STEPHEN CATLIN NATIONAL AUSTRALIA BANK LTD INDIRAN RAJADURAI |
Catchwords: | Practice and procedure Application to strike out claim on the basis of res judicata or issue estoppel Alternatively to strike out statement of claim as embarrassing Turns on own facts |
Legislation: | Fair Trading Act 1987, s 11 Rules of the Supreme Court, O 16 r 1, O 20 r 19 |
Case References: | Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- ADRIAN CHARLES STEPHEN CATLIN
Plaintiffs
AND
NATIONAL AUSTRALIA BANK LTD
First Defendant
INDIRAN RAJADURAI
Second Defendant
Catchwords:
Practice and procedure - Application to strike out claim on the basis of res judicata or issue estoppel - Alternatively to strike out statement of claim as embarrassing - Turns on own facts
Legislation:
Fair Trading Act 1987, s 11
Rules of the Supreme Court, O 16 r 1, O 20 r 19
(Page 2)
Result:
Statement of claim struck out
Category: B
Representation:
Counsel:
Plaintiffs : In person
First Defendant : Ms P E Cahill
Second Defendant : No appearance
Solicitors:
Plaintiffs : In person
First Defendant : Jackson McDonald
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Case(s) also cited:
Nil
(Page 3)
1 MASTER NEWNES: This is an application by the first defendant for summary judgment under O 16 r 1 of the Rules of the Supreme Court and, in the alternative, for an order striking out the plaintiffs' claim under O 20 r 19 as an abuse of process. The matter was heard on 25 March and 24 April 2003 and I subsequently received written submissions from the parties. At the request of the plaintiffs (and with agreement of the first defendant) delivery of this judgment was deferred to 21 July 2003 which was the first opportunity the plaintiffs had to be in Perth.
2 In substance, the first defendant says that the claims made by the plaintiffs against it are res judicata, those issues having been determined in earlier proceedings between them, or are the subject of issue estoppel. Alternatively, the first defendant says that the plaintiffs are estopped from raising those issues on the grounds described by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
3 The first defendant also brings an application, in the alternative, to strike out the statement of claim under O 20 r 9 on the grounds that it is embarrassing and/or does not disclose any reasonable cause of action.
4 In this action, the plaintiffs plead that they are husband and wife and were, at all material times, the directors and sole shareholders of ANA Enterprises Pty Ltd ("ANA") and beneficiaries of the Catlin Family Trust, of which ANA is the trustee. So far as is material, they plead in the statement of claim as follows:
"6. At all material times the Trust was the owner of the business known as Adrienne's Cafe which carried on business in Karratha.
7. The plaintiffs are the registered proprietors of the residential property situated at 13 Shadwick Drive, Karratha (the house).
8. Between 19 December 1995 and 19 December 1997 the plaintiffs and the Trust entered into three loan contracts with the first defendant.
Particulars of Loan Contracts
8.1 A home loan account 10-333-0889 for $150,000 approved on19 December 1995;
(Page 4)
- 8.2 A Flexiplus mortgage facility account 630-506-0645 approved on 19 December 1997 for a maximum sum of $79,000;
8.3 An Instalment Loan facility account 69-658-5165 approved on 19 December 1997 under those (hereinafter called 'the loans').
- 9. The plaintiffs opened and operated with the first defendant at Karratha business cheque accounts between 1995 and November 1999 as follows -
9.1 A Cafe account ('the Cafe account');
9.2 ANA Promotions account ('the ANA account').
10. On or about 19 December 1995, the first defendant and the plaintiffs made an agreement in which the first defendant would provide to the plaintiffs financial and banking advice ('the First Agreement').
Particulars of the First Agreement
10.1 The first defendant was represented by Graeme Thompson, an employee of the first defendant. The plaintiffs were represented by the first-named plaintiff;
10.2 The agreement was reached at the offices of the first defendant at its Karratha branch.
11. It was an expressed [sic] term of the First Agreement that the plaintiffs could overdraw the ANA account provided it was not for a longer period than 30 days at a time.
12. It was an expressed [sic] term of the First Agreement that the plaintiffs could overdraw the Cafe account provided it was not for a longer period than 30 days at a time.
13. It was an expressed [sic] term of the First Agreement that the plaintiffs could draw cheques on each of the ANA and Cafe accounts to achieve a credit balance in each other after the 30 day limit.
(Page 5)
- 14. It was an expressed [sic] term of the First Agreement that the first defendant through the said Graeme Thompson would tell the plaintiffs when to pass the cheques between the ANA and the Cafe accounts to achieve the required credit balance as pleaded in paragraphs 11 and 12 hereof.
15. Between 3 November 1997 and 22 November 1999 the plaintiffs drew and deposited cheques from and into the ANA and Cafe accounts with the knowledge and consent of the first defendant who levied certain financial charges in respect of these transactions.
Particulars of Cheques
The details and dates of these transactions and the employees of the first defendant who authorised the transactions exceed three folios and will be provided separately and before trial.
16. In breach of the expressed terms of the First Agreement pleaded in paragraphs 11 and 12 hereof, the first defendant on or about 23 November 1999 at Karratha revoked the overdraft for each of the ANA and the Cafe accounts.
17. On or about 1 May 2000, the first defendant claimed that ANA was indebted to it for $322,654.05, of which sum it claimed the plaintiffs had guaranteed the sum of $50,000, and it claimed from the plaintiffs the sum of $50,000 and interest.
18. The first defendant on 4 July 2001 issued a Supreme Court writ of summons against the plaintiffs seeking possession of the house, on the basis that the plaintiffs had defaulted on the loans, and it failed to pay to it the sum of $50,000 pleaded in paragraph 17 hereof.
19. On 3 May 2002 Master Bredmeyer in the Supreme Court gave the first defendant an order for possession of the house and the first defendant has since taken possession of the house, has informed the plaintiffs that it intends to sell it to recover moneys it claims are owing by the plaintiffs to it.
(Page 6)
- 20. On 21 June 2000 at Perth the plaintiffs and the first defendant entered into an agreement with respect to the discharge of the plaintiffs and ANA's total liability to the first defendant (hereinafter called 'the Second Agreement').
Particulars of the Second Agreement
20.1 The first defendant was represented by its employee Mark Murrell;
20.2 The plaintiffs were represented by the second name [sic] plaintiff.
21. It was an expressed [sic] term of the Second Agreement that in consideration of the plaintiffs paying to the first defendant the sum of $500,000 the first defendant would completely discharge the plaintiffs and ANA from all liability to it.
22. It was an implied term of the Second Agreement that the payment of $500,000 by the plaintiffs to the first defendant would be made within a reasonable time, and in the event that the first defendant then required a firm settlement date for payment, reasonable notice of its requirement thereof would be given to the plaintiffs.
Particulars of Implication
22.1 The terms implied:
22.1.1 In that it is reasonable and equitable, is necessary to give efficacy to the Second Agreement, is so obvious that 'it goes without saying', is capable of clear expression, and does not contradict any express terms of the Second Agreement;
22.1.2 By operation of common law and statute.
23. In breach of the Second Agreement the first defendant instructed the second defendant to sell the Cafe on 13 October 2000.
(Page 7)
- Particulars of Breach
23.1 The first defendant failed to give reasonable written notice or any notice at all to the plaintiffs of its requirement for a firm settlement date or of its intention to sell the Cafe;
23.2 The sale of the cafe denied the plaintiffs the means of raising $500,000 as the Cafe was providing an income for the plaintiffs; and was to be used as security for a loan.
24. The plaintiffs allege the first defendant by its misleading and deceptive conduct induced the plaintiffs to act in the manner which caused loss to the plaintiffs in breach of section 10 and section 12 of the Fair Trading Act 1987.
25. The plaintiffs allege the first defendant by its actions have acted in an unconscionable manner in breach of section 11 of the Fair Trading Act 1987.
26. As a result of the breaches pleaded in paragraphs 22, 23, and 24 above, the plaintiffs have suffered loss and damage.
Particulars of Loss and Damage
26.1 The plaintiffs have lost the Cafe causing a monetary loss of $350,000 or thereabouts;
26.2 The plaintiffs have lost the house causing a monetary loss of $300,000 or thereabouts;
26.3 The plaintiffs have lost their employment with the Cafe and therefore an annual joint income of $50,000, being a loss of $225,000 to the date hereof, which is accruing at the rate of $4166 per month."
6 The plaintiffs ("the Catlins") were customers of the first defendant ("the Bank"). On 19 December 1995 the Bank approved a home loan to
(Page 8)
- the Catlins in the sum of $150,000. The loan was secured by a mortgage granted by the Catlins over their home at 13 Shadwick Drive, Karratha. The mortgage was an "all moneys" mortgage; that is, it secured all loans, advances or banking accommodation which had been or were thereafter provided to the Catlins by the Bank.
7 In 1997, the Bank approved two further loans. The first was a Flexiplus mortgage facility approved on 19 December 1997 for a maximum sum of $79,000. The other was an Instalment Loan facility in the name of ANA as trustees for the Catlin Family Trust, trading as Adrienne's Cafe, which was approved on 19 December 1997. The Catlin entered into a guarantee of ANA's obligations under this loan facility to the extent of $50,000.
8 The mortgage, by its terms, secured the moneys advanced under these facilities and any liability of the Catlins under the guarantee. The mortgage was up-stamped in respect of the amount of that additional security.
9 On 14 November 2000, the Bank served a notice of demand on the Catlins. The demand stated that ANA had failed to pay an amount of $33,454.20 due under the Instalment Loan facility. It stated that the Catlins were thereby in default under their guarantee and that if they failed to remedy the default within 31 days, they would also be in default under the Flexiplus loan facility, with the result that the sum of $81,923.96 would become payable pursuant to that.
10 Subsequently, certain moneys were paid to the Bank and the matter was pursued no further.
11 On 7 June 2001, a second notice of demand was served on the Catlins demanding payment of the whole of the moneys owing under the three accounts. The total sum demanded was $269,132.78. Payment of that sum was not made by the Catlins and on 18 June 2001 the Bank served on them a notice to quit possession of the property at 13 Shadwick Drive, Karratha within 10 days. The Catlins did not comply with the notice and the Bank instituted proceedings in this Court for an order for possession.
12 After the entry of an appearance to the writ by the Catlins, the Bank applied for summary judgment. That application came on for hearing before Master Bredmeyer on 15 March 2002. The Catlins sought to resist the application on effectively four grounds. They were, in essence:
(Page 9)
- 1. The Bank had sold the cafe owned by ANA at an undervalue;
2. The Catlins had entered into an agreement on 19 June 2000 with the Bank, by a Mr Murrell, an officer of the Bank, to settle the plaintiffs' outstanding indebtedness by payment to the Bank of the sum of $500,000 and the Bank was in breach of that agreement in seeking to enforce its security;
3. The loans secured by the mortgage were not in arrears when demand was made;
4. Mrs Catlin had entered into the guarantee without any legal advice and without any explanation of its effect.
13 In addition, the Catlins made an application for a stay of the proceedings on the ground that they had been charged with criminal offences arising out of their operation of the bank accounts and were awaiting trial on those charges. They contended that the civil proceedings would prejudice their rights in the criminal proceedings and, therefore, the civil proceedings should be stayed pending finalisation of the criminal proceedings.
14 The learned Master declined to stay the proceedings. On the summary judgment application, the learned Master found that none of grounds relied upon by the Catlins raised any arguable defence to the claim. Relevantly, he found there was no binding agreement in relation to the compromise of the Catlins' indebtedness by payment of the sum of $500,000 and he was satisfied that the money claimed by the Bank was due and owing. The learned Master ordered that judgment be entered against the Catlins.
15 The Catlins appealed against that decision and applied to the Full Court for a stay of execution on the judgment pending the determination of the appeal. The Full Court declined to grant a stay. The Court concluded that the grounds for a stay had not been made out. It held that the Master's finding that no arguable defence had been shown, including that no binding agreement for compromise had been concluded, was correct. The Court also found that, even if there was an accepted offer of compromise, there was nothing to indicate it was in terms which prevented the Bank from relying on its security at a later time, given that there had been no payment or tender of any kind by the Catlins by the time demand was made.
(Page 10)
16 Subsequently, the Catlins applied again to the Full Court for a stay of execution on the basis that there was fresh evidence. This application was heard by a differently constituted Full Court. On this occasion, the Full Court had before it an affidavit sworn by Mrs Catlin in which Mrs Catlin referred to a conversation that she said she had recently had with Mr Murrell. Mrs Catlin said Mr Murrell had confirmed to her that he had agreed, on behalf of the Bank, that the Bank would accept the sum of $500,000 in full and final satisfaction of all the Catlins' indebtedness to the Bank and would release the securities.
17 Mrs Catlin contended before the Full Court that there was now, which had not been previously, firm evidence about an agreement with the Bank on 21 June 2000.
18 In refusing the stay of execution, Templeman J (with whom Wheeler and McKechnie JJ agreed) said:
"It is submitted by Mrs Catlin that in the circumstances a promissory estoppel arises which would have prevented the bank from moving to take possession. However, I am not persuaded that there is any evidence of that because there is no evidence of any representation made by the bank beyond apparently an agreement to extend to 31 July 2000.
In any event, even if there was a promissory estoppel, a promise can be withdrawn on reasonable notice. In the circumstances, albeit that the notice when given was very short, apparently only an hour or so, it would, I think, be unlikely that the Court would exercise any discretion in favour of the Catlins. There is no evidence that even then, some two months beyond the extension they had sought, they were in a position to raise the $500,000.
It seems to me therefore, that the new evidence which the Catlins seek to rely on does not carry the matter any further, and I would not on the basis of that material be prepared to stay the execution of the order made by Master Bredmeyer."
19 It is against this background that the Bank contends the Catlins' claims in these proceedings are res judicata or the subject of an issue estoppel, or that the Catlins are estopped on the principle explained in Anshun's case.
(Page 11)
20 In my view, for reasons I will come to shortly, the statement of claim as currently pleaded does not adequately set out the case that the Bank has to meet, and in important respects is vague and ambiguous. In those circumstances, I consider it would be premature to attempt to determine the issues of res judicata and estoppel. That determination can only properly be made when the Catlins' claims are pleaded in a way that enables the causes of action asserted in this action, and the material facts relied upon for each of those causes of action, to be clearly identified.
21 It is therefore necessary, in the first instance, to turn to the objections that the Bank takes to the form of the statement of claim. In doing so, it must be recognised that the Catlins are litigants in person. The same stringency that might be applied to a pleading drawn by a legal practitioner may not be appropriate where a litigant appears in person. Nevertheless, a party is entitled to be adequately informed of the case it has to meet, and a pleading that fails to do that should be struck out.
22 For convenience, I will set out, in turn, each paragraph to which objection is taken and the nature of the objection taken by the Bank.
Paragraph 10
23 Paragraph 10 of the statement of claim is as follows:
"10. On or about 19 December 1995, the first defendant and the plaintiffs made an agreement in which the first defendant would provide to the plaintiffs financial and banking advice ('the First Agreement').
Particulars of the First Agreement
10.1 The first defendant was represented by Graeme Thompson, an employee of the first defendant. The plaintiffs were represented by the first-named plaintiff;
10.2 The agreement was reached at the offices of the first defendant at its Karratha branch."
(Page 12)
25 The plaintiffs say that those are matters to be dealt with on an application for further and better particulars.
26 Although in normal circumstances the consideration for an agreement should be specifically pleaded, I do not consider that in this case that should be fatal to the plea. It is a matter that can be remedied by a request for further and better particulars, as can the other matters of which the Bank complains.
Paragraphs 11 and 12
27 The plea is in the following terms:
"11. It was an expressed term of the First Agreement that the plaintiffs could overdraw the ANA account provided it was not for a longer period than 30 days at a time.
12. It was an expressed term of the First Agreement that the plaintiffs could overdraw the Cafe account provided it was not for a longer period than 30 days at a time."
28 The first defendant says that the two alleged express terms of the agreement pleaded do not appear to relate to the agreement pleaded in par 10 in that they are terms which relate not to "financial and banking advice", but rather the manner in which the two particular accounts referred to could be overdrawn. The plaintiff says that an agreement to provide "banking advice" would include an agreement as to the method of operating accounts with the bank.
29 Any discrepancy seems to arise from the generic terms in which the plaintiffs have described the agreement in par 10, rather than from any ambiguity in the pleas in pars 11 and 12. I do not consider there is any real embarrassment to the first defendant.
Paragraphs 13 and 14
30 This plea is as follows:
"13. It was an expressed term of the First Agreement that the plaintiffs could draw cheques on each of the ANA and Cafe accounts to achieve a credit balance in each other after the 30 day limit.
(Page 13)
- 14. It was an expressed term of the First Agreement that the first defendant through the said Graeme Thompson would tell the plaintiffs when to pass the cheques between the ANA and the Cafe accounts to achieve the required credit balance as pleaded in paragraphs 11 and 12 hereof."
31 The first defendant again contends that the terms alleged do not constitute "financial or banking advice" as pleaded in par 10. For the reasons I have already given, I do not consider there is any real embarrassment to the first defendant. The first defendant also says that the pleas "would appear to potentially conflict with the terms and conditions of the individual accounts to which the paragraphs relate". The precise nature of that objection is not clear. What is pleaded by the plaintiffs is an express agreement made between the first defendant and the plaintiffs in relation to the conduct of the two accounts. I do not consider that the objection has been made out.
32 The first defendant also complains that it is not clear what is meant by the plea in par 13. In my view, that objection has substance. In the course of her submissions, Mrs Catlin said that it was intended to plead that there were two accounts, one of which would be in credit and the other in debit, and, within each 30-day cycle, funds could be drawn from the account in credit (thereby putting it into debit) and credited to the account in debit (thereby putting it into credit). That would continue in a cyclical way.
33 That, however, does not clearly emerge from the terms of par 13 as it is currently pleaded. As it stands, it is not at all clear what is intended. I consider that par 13 is embarrassing and should be struck out.
Paragraph 15
34 That plea is as follows:
"15. Between 3 November 1997 and 22 November 1999 the plaintiffs drew and deposited cheques from and into the ANA and Cafe accounts with the knowledge and consent of the first defendant who levied certain financial charges in respect of these transactions.
Particulars of Cheques
The details and dates of these transactions and the employees of the first defendant who authorised the
(Page 14)
- transactions exceed three folios and will be provided separately and before trial."
35 The plaintiffs complain that the alleged knowledge and consent of the first defendant is not particularised. The plaintiffs say that that can be cured by a request for further and better particulars. In the circumstances, I consider that is sufficient.
Paragraph 16
36 This plea is as follows:
"16. In breach of the expressed terms of the First Agreement pleaded in paragraphs 11 and 12 hereof, the first defendant on or about 23 November 1999 at Karratha revoked the overdraft for each of the ANA and the Cafe accounts."
37 The plaintiffs say that there is no plea that the first defendant could not revoke the overdraft, so that there is no basis for the plea that the revocation was in breach of the First Agreement. In the course of argument, the plaintiffs conceded that point and indicated that the statement of claim would be amended to plead such a term. I consider the objection is well-founded and the present plea should be struck out.
Paragraph 20
38 This plea is as follows:
"20. On 21 June 2000 at Perth the plaintiffs and the first defendant entered into an agreement with respect to the discharge of the plaintiffs and ANA's total liability to the first defendant (hereinafter called 'the Second Agreement').
Particulars of the Second Agreement
20.1 The first defendant was represented by its employee Mark Murrell;
20.2 The plaintiffs were represented by the second name [sic] plaintiff."
(Page 15)
39 The first defendant says it is not clear whether this plea, and the following pleas which depend upon it, are intended to be in the alternative to the First Agreement or in addition to it and that that needs to be clarified.
40 As it stands, the plea is in addition, not in the alternative, to the earlier plea and I would not strike it out on that ground.
41 The first defendant also complains that the plea has not been adequately particularised and, in particular, the "total liability" referred to has not been particularised. I consider that that can adequately be dealt with by a request for further and better particulars.
Paragraph 22
42 That plea is as follows:
"22. It was an implied term of the Second Agreement that the payment of $500,000 by the plaintiffs to the first defendant would be made within a reasonable time, and in the event that the first defendant then required a firm settlement date for payment, reasonable notice of its requirement thereof would be given to the plaintiffs.
Particulars of Implication
22.1 The terms implied:
22.1.1 In that it is reasonable and equitable, is necessary to give efficacy to the Second Agreement, is so obvious that 'it goes without saying', is capable of clear expression, and does not contradict any express terms of the Second Agreement;
22.1.2 By operation of common law and statute."
(Page 16)
Paragraphs 24 and 25
44 These pleas are as follows:
"24. The plaintiffs allege the first defendant by its misleading and deceptive conduct induced the plaintiffs to act in the manner which caused loss to the plaintiffs in breach of section 10 and section 12 of the Fair Trading Act 1987.
25. The plaintiffs allege the first defendant by its actions have acted in an unconscionable manner in breach of section 11 of the Fair Trading Act 1987."
45 The first defendant objects to these pleas on the basis that no material facts are pleaded to support either cause of action and, to the extent that the plaintiffs rely upon the alleged Second Agreement, there is nothing pleaded which could properly give rise to a claim to a claim for misleading and deceptive conduct or unconscionable conduct.
46 In response, in their written submissions the plaintiffs contended that it is obvious the plea is based "on the forgoing [sic]" facts. They contend that it was misleading and deceptive for the first defendant, so it is alleged, to inform the plaintiffs that they had time to raise funds to discharge their liability while at the same time causing the receiver to prepare to sell the business without informing the plaintiffs that they were doing so.
47 If that is the contention, is not clear from the pleading. The plaintiffs must clearly identify the specific conduct of the first defendant on which they seek to rely for the cause of action and the respects in which it is said that that conduct alleged was misleading or deceptive.
48 As they stand, I consider that pars 24 and 25 are embarrassing and should be struck out.
49 It is also pleaded that the first defendant was in breach of s 11 of the Fair Trading Act in that its conduct was unconscionable. The first defendant contends that the plea discloses no reasonable cause of action, as s 11(5) of the Act limits the services to which the section applies to services "of a kind ordinarily acquired for personal, domestic or household use or consumption". It is pleaded in the statement of claim that the bank accounts provided by the first defendant were business cheque accounts and that the banking advice alleged related to the operation of those accounts. The services allegedly supplied, therefore,
(Page 17)
- did not fall within s 11 of the Act. In my view, that submission is correct and the plea of unconscionable conduct should be struck out as disclosing no reasonable cause of action.
Paragraph 26
50 That plea is as follows:
"26. As a result of the breaches pleaded in paragraphs 22, 23, and 24 above, the plaintiffs have suffered loss and damage.
Particulars of Loss and Damage
26.1 The plaintiffs have lost the cafe causing a monetary loss of $350,000 or thereabouts;
26.2 The plaintiffs have lost the house causing a monetary loss of $300,000 or thereabouts;
26.3 The plaintiffs have lost their employment with the cafe and therefore an annual joint income of $50,000, being a loss of $225,000 to the date hereof, which is accruing at the rate of $4166 per month."
52 The first defendant complains that the plaintiffs have failed to distinguish between the position of themselves and that of ANA Enterprises Pty Ltd. In par 26.1, it is alleged the plaintiffs have suffered loss and damage by reason of losing the cafe. However, it is pleaded in par 6 of the statement of claim that, at all material times, the Catlin Family Trust, of which ANA was the trustee, was the owner of the cafe. I accept that complaint and would strike out par 26.1.
53 No relief is sought in respect of the alleged breach of the First Agreement. In their submissions, however, the plaintiffs made it clear that, in respect of both the First Agreement and the Second Agreement, they seek damages for breach of contract, in addition to their claims under the Fair Trading Act. In circumstances where it does not appear to be relied upon for the claims under the Fair Trading Act and no relief is
(Page 18)
- claimed in respect of it, as it stands the plea of the First Agreement is embarrassing. On that basis pars 10 to 16 of the statement of claim should be struck out.
54 In the circumstances, I consider the proper course is to strike out the whole of the statement of claim. In the meantime, the first defendant's application for summary judgment under O 16 r 1, and its alternative application to strike out the plaintiffs' claim as an abuse of process, on the grounds that the issues sought to be litigated by the plaintiffs are res judicata or that the plaintiffs are estopped from now raising them, should be adjourned pending the filing and service of any amended statement of claim by the plaintiffs.
55 If the plaintiffs wish to file and serve an amended statement of claim, that should be done in a timely way. I will hear the parties on that and on costs.
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