Commonwealth Bank of Australia v Garon Pty Ltd
[1999] WASC 147
COMMONWEALTH BANK OF AUSTRALIA -v- GARON PTY LTD & ORS [1999] WASC 147
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 147 | |
| Case No: | CIV:1924/1998 | 23 AUGUST 1999 | |
| Coram: | MASTER BREDMEYER | 26/08/99 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed in part | ||
| PDF Version |
| Parties: | COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) GARON PTY LTD DOMINIC CASELLA LILLY CASELLA EDGEDALE PTY LTD TERRACE ROAD PTY LTD SELEC PTY LTD GRACEWOOD NOMINEES PTY LTD |
Catchwords: | Procedure Particulars Application for further and better particulars |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
CIV 2060 of 1998 BETWEEN : COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
- Plaintiff
AND
GARON PTY LTD
First Defendant
DOMINIC CASELLA
LILLY CASELLA
Second Defendants
EDGEDALE PTY LTD
Third Defendant
TERRACE ROAD PTY LTD
Fourth Defendant
SELEC PTY LTD
Fifth Defendant
GRACEWOOD NOMINEES PTY LTD
Sixth Defendant
(Page 2)
Catchwords:
Procedure - Particulars - Application for further and better particulars
Legislation:
Nil
Result:
Application dismissed in part
Representation:
Counsel:
Plaintiff : Mr J L Sher
First Defendant : Mr S Singh
Second Defendants : Mr S Singh
Third Defendant : Mr S Singh
Fourth Defendant : Mr S Singh
Fifth Defendant : Mr S Singh
Sixth Defendant : Mr S Singh
Solicitors:
Plaintiff : Corrs Chambers Westgarth
First Defendant : Papamihail
Second Defendants : Papamihail
Third Defendant : Papamihail
Fourth Defendant : Papamihail
Fifth Defendant : Papamihail
Sixth Defendant : Papamihail
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MASTER BREDMEYER: This is an application by the defendants dated 11 August 1999 for leave to file and serve a request for further and better particulars of the plaintiff's amended statement of claim (the "statement of claim"). An earlier application for particulars was dismissed by Registrar Powell on 27 July 1999. This is not an appeal from that order. This request is differently worded from the request that was considered and rejected by Registrar Powell.
2 I propose to ignore some technical objections and go to the merits of the requests. Request 1 is in this form:
"1. As to paragraph 53(2) of the Amended Statement of claim, state the facts, matters and circumstances relied upon to support the claim that securities over the Garon Kenwick Land and the Garon Casuarina Land were provided to secure advances made under the Garon Loan Agreement and the Second Garon Loan Agreement."
3 Paragraph 53(2) is one of the prayers for relief in this mortgage action. In that prayer the plaintiff seeks an order against the first defendant that it give vacant possession to the plaintiff of the Garon Kenwick Land and the Garon Casuarina Land both of which are defined earlier in the statement of claim. I do not consider any particulars of that prayer for relief are necessary to inform the defendants of the case they have to meet or to prevent them being taken by surprise at the trial. As stated, the action against the defendants is essentially a mortgage action. It is pleaded in the 20 page statement of claim that on 14 December 1989 the plaintiff and Garon entered into a written agreement whereby the plaintiff agreed to lend $1.2 million to Garon and that on the same date Garon gave a mortgage to the plaintiff over the Garon Kenwick Land. It is further pleaded that on 3 January 1990 Garon gave a further mortgage over the Garon Casuarina Land to secure the same loan. It is pleaded that Garon defaulted in payment of the amounts owing and that on 3 July 1988 the plaintiff sent a notice of demand to it which, I assume, was not honoured.
4 Requests 2, 3, 4 and 5 relate to other prayers for relief and are similar to Request 1. I give a similar ruling. I consider that further particulars are not necessary as the pleading informs the defendants adequately of the case they have to meet.
5 Request 7 reads:
(Page 4)
- "As to paragraph 26 of the Amended Statement of Claim, state what facts, matters and circumstances gave rise to the granting of the Edgedale Mortgage."
6 In par 24 it is pleaded that the plaintiff and the third defendant entered into the Edgedale Loan Agreement on or about 25 September 1989 under which the plaintiff agreed to lend to the fourth defendant certain accommodation on the plaintiff's usual terms and conditions. It is then pleaded that the plaintiff gave a mortgage called the "Edgedale Mortgage" pursuant to that loan agreement. I do not consider it is necessary for the plaintiff to state the facts, matters and circumstances which give rise to the execution of the Edgedale Loan Agreement. The plaintiff is suing on a written loan and mortgage agreement. The agreement and mortgage speak for themselves and it is not a necessary element of the plaintiff's case to plead how the plaintiff and the fourth defendant came to enter into a loan agreement. If the defendant wishes to allege that they entered into this and other agreements as a result of the plaintiff's unconscionable conduct and/or economic duress, then that is something for the defendants to plead in their defence and for the plaintiff to respond to in its reply. Request 6 will be refused for this reason.
7 Requests 7 to 15 are in similar form and will be refused for the same reason.
8 Requests 16 and 17 ask:
"16. As to paragraph 45 of the Amended Statement of Claim, state what facts, matters and circumstances gave rise to the provision of the guarantees by the second, third, fourth, fifth and sixth defendants.
17. As to paragraph 46 of the Amended Statement of Claim, provide full particulars of the terms and conditions of each of the guarantees provided by the second, third, fourth, fifth, and sixth defendants."
9 These requests will be refused. The plaintiff is suing on written guarantees. The circumstances whereby the guarantees came to be given are not part of its cause of action. The particulars of the terms and conditions in the guarantees are in the documents which the defendants have or are entitled to have. I note that the defendants have had discovery from the plaintiff and are entitled to see any document mentioned in a pleading (O 26 r 8(2)).
(Page 5)
10 Request 18 is in this form:
"As to paragraph 49 of the Amended Statement of Claim, state what facts, matters and circumstances gave rise to the first defendant defaulting in its payment of the amounts due and payable pursuant to the Accommodation and the Increase."
11 Request 19 is in this form:
"As to paragraph 52 of the Amended Statement of Claim, provide full particulars of the Plaintiff's claim for the sum of $2,916,770.89, and specify in particular:
(a) The proportion of that amount for which each of the first, second, third, fourth, fifth and sixth defendants is liable;
(b) The full particulars of the other amounts debited by the plaintiff to the account of the first, second, third, fourth, fifth and sixth defendants;
(c) The amount of costs, interests, and penalties claimed against the defendants and the method by which those costs, penalties, and interests have been calculated;"
12 Request 18 and the first part of Request 19 is in similar form to Request 15 found in the plaintiff's request for further and better particulars of 28 June 1999 which was rejected by Registrar Powell on 27 July 1999. I understand that that application was rejected after hearing argument on the merits. There is no appeal from that order and I am not persuaded that there any exceptional reasons why I should cancel that order under O 29A r 13. This request will be refused.
13 Request 19(a) and (b) ask about the proportion of the total amount of $2,916,770.89 owing by each of the six defendants and particulars of the amounts debited by the plaintiff to the accounts of the various defendants. The plaintiff's case is that all six defendants owe all the money so these requests are not necessary to understand the plaintiff's case and will be refused.
14 Request 19(c) seeks particulars of the amount of costs, interests and penalties claimed against the defendants and the methods by which those costs, interests and penalties have been calculated. This was not a question asked in the earlier request refused by the Registrar. I propose to allow the first part - the particulars of the costs, interests and penalties
(Page 6)
- claimed against the defendants. I consider that a reasonable request. I reject the second part of that request as relating to matters of evidence.
15 I make the following orders:
1. The plaintiff is to give particulars of the amount of costs, interests and penalties claimed against the defendants within 14 days.
2. The defendants application is otherwise dismissed.
3. The defendants to pay the plaintiff's costs of this application on 3/4 basis in any event.
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