Chelsea Heights Pty Ltd v Winduss and Cook Pty Ltd
[1999] WASC 118
CHELSEA HEIGHTS PTY LTD & ORS -v- WINDUSS & COOK PTY LTD [1999] WASC 118
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 118 | |
| Case No: | CIV:1174/1999 | 30 JULY 1999 | |
| Coram: | MASTER BREDMEYER | 6/08/99 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part | ||
| PDF Version |
| Parties: | CHELSEA HEIGHTS PTY LTD MURRAY GRIFFITH CLARK JUDYTH CLARK WINDUSS & COOK PTY LTD |
Catchwords: | Pleading Leave to amend Should be refused if pleading fails to disclose an arguable claim or otherwise offends the pleading rules |
Legislation: | Nil |
Case References: | Nil Hancock Prospecting Pty Ltd v Porteous & Anor, unreported; SCt of WA; Library No 980426; 3 August 1998 Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
MURRAY GRIFFITH CLARK
JUDYTH CLARK
Second Plaintiff
AND
WINDUSS & COOK PTY LTD
Defendant
Catchwords:
Pleading - Leave to amend - Should be refused if pleading fails to disclose an arguable claim or otherwise offends the pleading rules
Legislation:
Nil
Result:
Application allowed in part
(Page 2)
Representation:
Counsel:
First Plaintiff : Mr P A Sartori
Second Plaintiff : Mr P A Sartori
Defendant : Mrs D M Templeman
Solicitors:
First Plaintiff : Solomon Bros
Second Plaintiff : Solomon Bros
Defendant : Minter Ellison
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Hancock Prospecting Pty Ltd v Porteous & Anor, unreported; SCt of WA; Library No 980426; 3 August 1998
Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
(Page 3)
1 MASTER BREDMEYER: This is an application by the plaintiffs for leave to file a substituted statement of claim in terms of a minute of 12 July 1999. By an order of Registrar Rimmer made on 9 June 1999 the plaintiffs were to file and serve an application to amend the statement of claim by 4.00 pm on 23 June 1999. The present application is dated 12 July 1999 and is thus late. Leave to file an amended or substituted pleading should be refused if the pleading is in a form which ought to be struck out either because it does not disclose an arguable cause of action or otherwise offends our pleading rules.
2 The defendant's main objection to the proposed new pleading as set out in the minute is that it does not provide adequate particulars of the allegations made so that the defendant can plead adequately to it. I am willing to excuse its lateness.
3 The new pleading follows the old one fairly closely in content but it differs in style. The original pleading was done by the plaintiffs former solicitors and that may account for the difference. The original statement of claim of 18 February 1999 covered 11 pages and was met by a brief holding defence and a massive request for particulars covering 18 pages. That request has not been met.
4 Nine times in the minute it is stated that full particulars of something will be provided after discovery and interrogatories and prior to trial. For example, in par 6 which refers to some "general advice" sought from the defendant, and under the heading of "Particulars of the General Advice", is this statement "Full particulars of the general advice will be provided after discovery, interrogatories and trial". Paragraph 8 is in similar form. That paragraph refers to a request made by the plaintiffs to the defendant and it is stated that full particulars of the request will be provided after discovery, interrogatories and prior to trial. I will consider each of these in turn.
5 In par 6 I consider no particulars need be given. The plea is simply an introductory one and may well be admitted by the defendant in its defence if it had chosen not to file a holding defence. I will allow par 6 and strike out the reference to particulars.
6 Paragraph 7 pleads that the plaintiffs provided certain financial information to the defendant about the businesses it was thinking of buying. I consider particulars of that should be given in the pleading. I will strike out the reference to later particulars being supplied.
(Page 4)
7 Paragraph 8 refers to a request made by the plaintiffs to the defendant for advice on the purchase of the business. I consider the plaintiffs should be able to provide particulars of their request in par 8. It is within their knowledge. I will delete the reference to particulars of the request.
8 In par 13.1, I consider that the plea of the advice given, although brief, is adequate and I will strike out the reference to particulars of that advice. The defendant said that the plea in par 13.2 was inadequate. That plea refers to two representations said to have been made by the defendant. The defendant objects that the plaintiffs do not state whether the representations are oral or in writing etc. I do not consider that particulars of the representations should be contained in the pleading. The plea might be admitted by the defendant when it files a proper defence. I will strike out the reference to particulars.
9 In par 16 the plaintiffs plead the falsity of the representations as to the value of the goodwill, the value of the equipment and the stated profitability of the business . I consider that particulars of this should be contained in the pleading and I will strike out the reference to particulars coming later as stated there. The plaintiffs purchased the business. They should know what its profitability etc was like.
10 Paragraph 20 pleads that by reason of the defendant's breach of contract pleaded in par 19 the plaintiffs have suffered loss and damage and goes on to state that full particulars of loss and damage will be provided after discovery and interrogatories and prior to trial. Paragraph 21 is a plea in similar form in relation to loss and damage suffered from the defendant's negligence. I consider those particulars should be contained in the pleading. If they need to be amended later, that can be done. The information necessary to calculate the loss or damage is within the knowledge of the plaintiffs. The quantification of damages in this way, and earlier rather than later, might prompt a settlement.
11 Paragraph 25 pleads that the plaintiffs suffered loss and damage from the defendant's misleading and deceptive conduct. Those particulars should be contained in the pleading, they are within the plaintiffs' knowledge. I will strike out the reference to the particulars coming later.
12 In summary I will not allow the pleading in its present form. I will give the plaintiffs leave to file a fresh substituted statement of claim within 28 days to give effect to these reasons.
(Page 5)
13 I will order the plaintiffs to pay the defendant's costs of this application in any event. I will not award the defendant any costs thrown away. I consider the defendant should get no costs for its holding defence because holding defences are anathema to the Court: see Seaman 20.14.3. Neither do I think the defendant should get any costs thrown away for its lengthy request for further and better particulars of the first statement of claim. That request proceeded in my view from a wrong premise, namely, that a holding defence denying all allegations is permissible, so that a detailed request for particulars of all the allegations in the statement of claim - with one or two tiny exceptions, is in order. One of the benefits of getting an adequately pleaded defence which serves to narrow the issues between the parties is that it leads to a more concise and more relevant request for particulars directed only to matters which are in issue.
0
1
0