Coonawarra Premium Vineyards Ltd v Nugan Group Pty Ltd - [2005] SASC 42

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Civil)
COONAWARRA PREMIUM VINEYARDS LTD v NUGAN GROUP PTY LTD & ANOR
Judgment of The Honourable Justice Nyland
8 February 2005
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT - PLEADINGS
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT - PARTIES
Appeal against orders of master granting joinder of second defendant and leave to file amended statement of claim - application for specific directions in relation to same orders - whether second defendant properly joined - whether statement of claim complied with rules as to pleadings - apeal against orders of master dismissed - application for specific directions allowed - plaintiffs to provide further and better particulars in statement of claim.

COONAWARRA PREMIUM VINEYARDS LTD v NUGAN GROUP PTY LTD & ANOR
[2005] SASC 42

NYLAND J: There are two matters which arise for determination in this matter. The first is an appeal against orders made by a master of the court on 16 June 2004, wherein leave was given to the plaintiff to amend its claim in order to join Nugan Estate Pty Ltd (formerly Terra Nova Estates Pty Ltd) as a defendant to these proceedings, and the plaintiff granted leave to file an amended statement of claim.
On 23 July 2004, the defendants filed an application for specific directions in relation to the amended statement of claim which had been filed pursuant to the aforesaid order and that is the second matter to be determined. The defendants applied for a stay of the orders made by the master pending the hearing of the appeal, but that application was refused by Perry J on 16 July 2004. Perry J did, however, vary one of the orders made by the master and directed that the defendants either file and deliver an amended defence to the amended statement of claim or take out an application for further and better particulars or otherwise to strike out the amended statement of claim on or before 23 July 2004. Perry J made that order without prejudice to the defendants’ right to pursue the appeal. The two proceedings were subsequently listed for hearing together. Essentially, the issue between the parties is whether the plaintiff has put forward a proper pleading which shows an arguable case against Nugan Estate Pty Ltd. As a matter of convenience I will continue, where appropriate, to refer to the parties as plaintiff and defendants.
The original action:
The proceedings from which this matter has arisen concern a grape supply agreement, and the production and supply of grapes by the plaintiff to the defendant pursuant to its terms.
Parties to the agreement:
The plaintiff in the original action, Coonawarra Premium Vineyards (CPVL) is a company which grows grapes in the Coonawarra region. It was incorporated on 3 May 1999 and is deemed to be a company incorporated under the Corporations Act 2001. On 21 April 1999, Coonawarra Vineyard Management Services (CVMS) entered into a Grape Supply Agreement (the Agreement) with the defendant in the original action, Nugan Group Ltd (NG), whereby NG agreed to purchase wine grapes from CVMS and CVMS agreed to sell wine grapes to NG. NG is, and was at all material times, a company incorporated under the Corporations Act 2001.
CVMS executed the Agreement on behalf of CPVL, which was not at that time incorporated. Accordingly, clause 5.2 of the Agreement provided that:
“Both the Grower (CVMS) and the Winery (NG) agree and acknowledge that CVMS executes this Agreement for the benefit of CPVL and upon CPVL notifying the Winery of the ratification of this Agreement:
5.2.1CPVL becomes a party to this Agreement as if it was named as the Grower instead of CVMS and had executed the Agreement:
5.2.2CPVL assumes all liabilities, and is entitled to all benefits under this Agreement;
5.2.3CPVL is released from all obligations under this Agreement except to the extent those obligations arose due to CVMS breaching any terms of this Agreement.”
Clause 5.3 provided similarly that NG executed that agreement for the benefit of a company called ‘Pier Point Wines Pty Ltd’, such that:
“Both the Grower (CVMS) and the Winery (NG) agree and acknowledge that NG executes this Agreement for the benefit of Pier Point Wines Pty Ltd (PW) and upon NG notifying the Grower of the ratification of this Agreement:
5.3.1PW becomes a party to this Agreement as if it was named as the Winery instead of NG and had executed the Agreement;
5.3.2PW assumes all liabilities, and is entitled to all benefits under this Agreement;
5.3.3NG is released from all obligations under this Agreement except to the extent those obligations arose due to NG breaching any terms of this Agreement.”
Pier Point Wines Pty Ltd (PW) is defined in Clause 3 to mean “a company to be incorporated by, or otherwise acquired by NG under the name ‘Pier Point Wines Pty Ltd’ or such other name as NG is able to reserve with the Securities and Investments Commission”. PW was registered with the Australian Securities and Investment Commission (ASIC) as a proprietary company on 10 October 2003. PW is listed with ASIC as having two issued shares, both of which are held beneficially by Nugan Group Pty Ltd.
The second defendant, Nugan Estate Pty Ltd, was a company incorporated as Nugan (Agriculture) Pty Ltd on 17 April 1953. On 6 March 2000, Nugan (Agriculture) Pty Ltd changed its name to Terra Nova Estate Pty Ltd and on 13 August 2002 Terra Nova Estate Pty Ltd changed its name to Nugan Estate Pty Ltd. All the shares in Nugan Estate are held by NG.
It is alleged by the plaintiff at paragraph 6 of the Amended Statement of Claim that pursuant to clauses 5.2 and 5.3 of the Agreement, CVMS and NG respectively notified each other that CPVL and Nugan Estates had ratified the Agreement and thereafter each had become parties to it by operation of the Agreement and s131 of the Corporations Law as then applicable. The defendants dispute that such notification was ever provided by NG.
Terms of the contract and alleged breach:
Pursuant to clause 8.5 of the Agreement, the payment arrangements were defined such that all batches of grapes would be paid for in the following way:
(a)33 1/3 of the amount payable for the batch of grapes would be paid by the end of the month immediately following the month of delivery;
(b)33 1/3 of the amount payable would be paid by 30 June in the year of delivery; and
(c)33 1/3 of the amount payable would be paid by 30 September in the year of delivery.
CPVL supplied certain batches of grapes to NG, which accepted them, and CPVL invoiced NG for the grapes in the amount of $399,935.41 by invoice dated 24 September 2003 and served on NG by letter dated 3 October 2003. Accordingly, CPVL says that pursuant to the terms of the Agreement, the payment should have been made by 30 September 2003, and pursuant to the letter accompanying the invoice, it was to have been paid by 13 October 2003. NG failed to pay the money then or at any time since.
CPVL is claiming judgment in the main action in the amount of $399,935.41 and interest, costs and such further orders as the Court deems fit.
NG admits that it has failed to pay the amounts as alleged, but denies that it is under any obligation to pay the sum claimed and denies that this in breach of the agreement as alleged or at all. NG further says that it is entitled to and does repudiate the agreement, and denies that the plaintiff is entitled to the relief claimed or to any relief.
Procedural history of this application:
By notice dated 1 June 2004, the plaintiff applied to the court for specific directions in the original action that:
1.The plaintiff be granted leave to amend its claim to join Nugan Estate P/L as a defendant to the proceedings.
2.The time for filing of the amended Statement of Claim be extended until 4 June 2004 or whenever the Court should see fit.
The application was heard by a master on 16 June 2004 on which date the master ordered:
“1.Leave be granted to join Nugan Estate Pty Ltd as a defendant in this action.
2.Leave be granted to the newly joined defendant to appear and serve any answering documents within 21 days of the receipt of the Amended Statement of Claim and likewise the present defendant.
3.Leave to the plaintiff to file a Reply and Defence to Counter Claim within 14 days after that.
4.Parties to complete discovery within 8 weeks.
5.Directions hearing on 1 July 2004 vacated.
6.Adjourned to final Directions Hearing on 26 August 2004 at 11 am.”
Appeal against master’s orders:
The newly joined second defendant, Nugan Estate, entered an appearance on 23 June 2004. On the same date both defendants filed a notice of appeal against paragraphs 1 and 2 of the master’s orders.
Application for stay of orders:
As I have mentioned, the defendants then applied on 1 July 2004 by a notice for specific directions for a stay of the orders made by the master pending the hearing of the appeal.
Application for specific directions:
Following the orders made by Perry J, the defendants applied to the Court on 23 July 2004 for specific directions as follows:
“1.That the plaintiff provide further material facts of the allegation made in paragraph 6 of the Amended Statement of Claim that the first defendant notified CVMS that Nugan Estates P/L ratified the Agreement.
2.That the plaintiff provide further material facts of the allegation in paragraph 6 that Nugan Estates P/L became party to the Agreement by operation of s131 of the Corporations Law.
3.That paragraph 6B and 7 of the Amended Statement of Claim be struck out or in the alternative that the first seven words of paragraph 6B of the Amended Statement of Claim be struck out.
4.Such further or other orders as the Court deems just and equitable.”
At the hearing before me, Mr H A L Abbott appeared as counsel for the defendants (the appellants with respect to the appeal), and Mr Hoffmann as counsel for the plaintiff (respondent).
Issues on the appeal:
The grounds of appeal are set out in the notice as follows:
“1.That the Master erred in failing to afford the [defendants] the opportunity to present argument in opposition to the [plaintiff’s] application.
2.That the Master erred in granting leave to join Nugan Estate P/L as a defendant to the within proceedings in the absence of any or any satisfactory grounds for such joinder being established by the [plaintiff].
3.The Master erred in granting leave to the [plaintiff] to amend the Statement of Claim in the terms of the draft annexed to the affidavit of Elizabeth Anne Hoskyns, given that in material respects the proposed amendments do not comply with the rules as to pleadings.”
Ground One – Denial of a fair hearing:
The defendants’ submission in relation to the first ground of appeal is that the master failed to give them a reasonable opportunity to present argument and evidence at the hearing. No transcript was taken of the hearing, but both parties placed evidence before the court in affidavit form. The plaintiff relied on an affidavit of Elizabeth Ann Hoskyns dated 23 June 2004, and the defendants supported their submissions with the affidavit of Debra Ruth Lane sworn on 6 August 2004.
The facts as to what occurred at the hearing do not appear to be in dispute. Mr Hoffmann with Ms Hoskyns appeared for the plaintiff, and Ms Lane appeared for the defendant. Ms Lane told the master that the application for leave to amend and joinder was opposed by the defendant, because paragraph 6B of the proposed Amended Statement of Claim was wholly lacking in particulars, paragraph 7(4) was wholly lacking in material fact, and there was no proper basis for joinder of Nugan Estate. She requested that the matter be set down for special argument.
Mr Hoffman submitted that paragraph 6B was particularised, that paragraph 7B was appropriately pleaded, and that an affidavit of Ms Hoskyns sworn 1 June 2004 deposed to the reasons why the joinder of Nugan Estate was being sought. The master said he would grant leave to amend and for joinder, and that the defendants could thereafter bring any further applications as they may be advised.
The defence case is, however, that Ms Lane appeared before the master in the belief that the matter had been listed for mention only, but was then required to argue the application, for which she was unprepared. Ms Lane says she attended the hearing in anticipation that the master would accede to a request to list the matter for special argument. The master required argument to proceed on that date, however, and as Ms Lane was not prepared for this eventuality, the best that she could do under the circumstances was to inform the court that the application was opposed, and to read from some notes made during a previous discussion with counsel. On that basis, the defendants say that they were denied the opportunity to place before the court further affidavits in support of their opposition to the plaintiff’s application, as well as additional arguments, had the matter been adjourned.
Mr Abbott submitted that this ground had further relevance in that it demonstrated why the defendants’ arguments, now put on appeal, were not canvassed before the master. Mr Hoffmann submitted, however, that there was no basis for an appeal against or an attack upon the master’s exercise of discretion. Ms Lane was not denied a fair hearing just because she attended with the misapprehension that the matter was for mention only. The first ground of the appeal was therefore untenable.
Before reaching any conclusion as to this aspect of the matter, I propose to deal with the remaining grounds of appeal.
Grounds Two and Three – Defective pleading leading to improper joinder:
Although the proceedings have become complicated by the instigation of both an appeal and an application for directions, the defendants’ substantive complaint is essentially the same, that is, the Amended Statement of Claim is a defective pleading as the particulars therein are not sufficient to justify the joinder of Nugan Estate as a second defendant. It should therefore be struck out, and/or further material facts or particulars should be ordered. The defendants submit that if such cannot be supplied, the joinder of Nugan Estate should be rescinded.
The defendants’ objections to the Amended Statement of Claim relate to the allegations in paragraphs 6 and 6B which provide:
“6.Pursuant to clause 5.2 and 5.3 of the Agreement CVMS and NG respectively notified each other that CPVL and Nugan had ratified the agreement and thereafter each became parties to it by operation of
6.1 the Agreement;
6.2 section 131 of the corporations law as then applicable.
Particulars
Particulars of NG’s notification will be provided following discovery and inspection herein.
6A.In the alternative to paragraph 6, if NG did not notify CPVL that Nugan ratified the Agreement then NG was and at all times material to this action has remained a party to and bound by the Agreement.
6B.In the further alternative to paragraph 6 Nugan acted on behalf of NG in relation to its dealings with CPVL as particularised in paragraphs 7, 15 and 16 below.”
The defendants contend that this pleading is defective in several respects. Their complaints are set out in a letter from Mouldens’ Solicitors to Ms Joanne Collett of Finlaysons dated 5 August 2004, which is attached to the defendants’ outline of argument.
Pre-incorporation clause:
The defendants’ first contention is that the Agreement between CPVL and NG does not contemplate or permit a company such as Nugan Estate to ratify the Agreement or by notice to become bound by it as alleged in paragraph 6 of the Amended Statement of Claim. In support of this submission, the defendants point to clause 5.3 of the Agreement, which refers to NG executing the Agreement “for the benefit of PW”, and to clause 3 which defines PW as a company to be incorporated or “acquired” by NG. The defendants contend that this definition “obviously refers to a company to be incorporated or a shelf company to be acquired for the purpose of becoming a party to the Agreement” and submit that Nugan Estate did not fit this description at any time. The defendants tendered affidavit evidence showing that Nugan Estate was already incorporated at the time the Agreement was executed, and was not a mere shelf company.
The plaintiff did not specifically address this submission before me, although Mr Hoffmann pointed to paragraph 3A of the pleadings, which specifically pleads the incorporation of Nugan Estate in 1953.
Notification/Ratification:
Secondly, the defendants submit that the pleading in paragraph 6 contains insufficient material facts to support the allegation that both CPVL and Nugan Estate ratified the agreement and that CVMS and NG notified each other of those ratifications. In support of this position, Mr Abbott took some comfort from concessions made in the plaintiff’s outline of argument. He pointed to paragraph 27 of the plaintiff’s outline of argument, which states:
“The plaintiff:
27.1Accepts that it should provide particulars of its notification/ratification of the Grape Supply Agreement as contended in paragraph 3 of the letter from Mouldens to Finlaysons dated 5 August 2004.
27.2Notes that the defendants accept at paragraph 3 of the Mouldens letter that the provision of particulars of NG/Nugan’s notification/ratification may properly await discovery and inspection.
27.3Contends that fair notice of its case as to the operation of section 131 of the Corporations Act (Cth) is provided but will clarify the plea so as to make it clear that it is a plea limited to CPVL only.
27.4Contends that paragraph 6B of the amended statement of claim appropriately pleads an alternative case having regard to the principle of agency.”
Mr Abbott submitted that paragraph 27.1 evidences an acceptance by the plaintiff that it should give particulars of both the ratification by CPVL and the notification by CVMS. He acknowledged that the plaintiff will not be able to give particulars of the ratification by Nugan Estate until particulars are revealed in the defendants’ discovery, but disputed the suggestion in paragraph 27.2 that the defendants accept that the particulars of the notification by NG can await discovery. The defendants complain that there is no basis for the plaintiff to await discovery from them before being required to plead particulars of the allegation that notice of Nugan Estate’s ratification was given by NG, and say that any such notice would plainly be within the knowledge of the plaintiff or easily ascertainable by it, since CVMS was the alleged recipient of the notice. On the defence case, the fact that the plaintiff has not pleaded any particulars of this allegation leads to the inescapable inference that it is unable to do so, and furthermore that there is no basis for any reasonable belief that discovery by the defendants would resolve this issue for the plaintiff.
Mr Abbott submitted that this was further supported by the comment in the plaintiff’s outline of argument to the effect that the plaintiff had been unable to locate a notification form from the first defendant as to whom it novated the agreement.
A similar expression was used in paragraph 10.2 to summarise the affidavit of Ms Hoskyns. On the defence case, rather than stating an inability to find ‘the notification’, which would imply that there had been one, but it had been lost or misplaced, in saying it was unable to find ‘a notification’ the plaintiff was admitting that it was unable to say even if such a notification had ever been received. If no such notification was received, then even if Nugan Estate could have become a party (which the defendants dispute), it never did become a party to the Agreement. On this view of the pleadings, the joinder of Nugan Estate may be based upon an alleged notification which, on its own affidavit evidence, the plaintiff is unable to say it ever received. On that basis, the plaintiff’s pleading was defective, and that there was no basis to postpone such a defective pleading until the completion of discovery.

Although the plaintiff has accepted that it should provide particulars of its notification/ratification of the Agreement, it was submitted that rule 46.02 made it appropriate that the particulars of the notification/ratification of NG or Nugan Estate should await discovery and inspection. Mr Hoffmann did not see the subtlety of the distinction drawn by Mr Abbott between “a notification” and “the notification”, but submitted that due to clauses 5.2 and 5.3 of the contract, it was appropriate to presume that there was such a notice.
Section 131 Corporations Act:
The defendants’ third complaint relates to the plaintiff’s allegation in paragraph 6.2 of the Amended Statement of Claim that CPVL and Nugan Estate became parties to the Agreement by operation of section 131 of the Corporations Law. The objection again relates to a lack of plea as to the material facts of the allegation. Section 131 states relevantly:
“Contracts before registration
(1) If a person enters into, or purports to enter into, a contract on behalf of, or for the benefit of, a company before it is registered, the company becomes bound by the contract and entitled to its benefit if the company, or a company that is reasonably identifiable with it, is registered and ratifies the contract:
(a) within the time agreed to by the parties to the contract; or
(b) if there is no agreed time - within a reasonable time after the contract is entered into.”
The defendants submitted that on the face of the plaintiff’s pleading, it was alleged that both CVPL and Nugan Estate were alleged to have become parties to the Agreement by the operation of s131. In the Mouldens letter, the defendants pointed out that Nugan Estate was not a company in the process of pre-registration, and that consequently s131 could have no operation. In paragraph 27.3 of the plaintiff’s outline, however, there is a comment that it is intended to “clarify the plea so that it is clear that it is a plea limited to CVPL only”, in which case this aspect of the matter would be resolved.
Paragraph 6B:
Whilst paragraph 6 of the Amended Statement of Claim says that Nugan Estate became a party to the Agreement pursuant to its terms, paragraph 6B alleges in the alternative that Nugan Estate acted on behalf of NG in relation to its dealings with the plaintiff and thereafter sets out the particulars of those dealings. The defendants submit, however, that the mere fact that Nugan Estate acted on behalf of or as an agent for the contracting party cannot render it liable under the contract. At paragraph 27.4 of its outline, the plaintiff contended that paragraph 6B of the Amended Statement of Claim appropriately pleaded an alternative case having regard to the principles of agency. Mr Abbott submitted that whilst on occasion an agent can be rendered liable on a contract as an undisclosed principal, or where it is taken to be a party, the mere fact that Nugan Estate had dealings on behalf of the contracting party cannot render it liable under the contract. Accordingly, the defendants sought to have paragraph 6B struck out.
Mr Hoffmann said, however, that the plaintiff’s case was not that Nugan Estate was liable by reason of having acted on behalf of NG, but rather that Nugan Estate had acted for a disclosed principal in the form of NG. Mr Hoffmann referred to the particulars provided in paragraphs 7, 15 and 16 as to the dealings between the parties, and the affidavit of Joanne Collett, sworn 10 August 2004, deposing further to the interaction between the plaintiff and Nugan Estate in regards to carrying out the terms of the contract. The plaintiff’s case is that the course of dealings between the parties is such that both NG and Nugan Estate have been involved in the dealings with the plaintiff, and that accordingly the alternative case was appropriately pleaded.
Pleading – Material Facts and Particulars:
Mr Abbott submitted that the master should have considered the proposed amended statement of claim and determined whether the pleading was defective before permitting joinder. Mr Abbott referred to rule 46A.02(b) read in conjunction with 46A.09, and submitted that no order should have been made for any further material facts to be pleaded, other than where the material facts pleaded do not disclose facts sufficient to give the other parties fair notice of the case which they have to meet. He argued that in this case the absence of any particulars of notice or ratification meant that the defendants did not have any notice at all of the case they are required to meet. On that basis, no order should have been made until such time as the plaintiff provided a proper pleading.
Mr Hoffmann submitted, however, that the amendments to the statement of claim complied with rule 46A. He distinguished between the former rule 46.20, which required the pleading of particulars, and rule 46A.03, which requires parties to plead the material facts relied upon to constitute the cause of action. He submitted that paragraph 6 of the amended Statement of Claim pleaded the material facts as to notification and ratification, which go to whether or not Nugan Estate is a party to the Agreement. Mr Hoffmann also pointed to the alternative submission in paragraph 6B, which he submitted was suitably pleaded through the particularising of the dealings between the plaintiff and Nugan Estate in paragraphs 7, 15 and 16.
Orders sought:
In relation to the second and third grounds of appeal, the defendants submitted that the defendants had pointed to a clear error, virtually conceded by the plaintiff, which had resulted in an improper joinder and in Nugan Estate becoming involved in litigation to which it should not be party. As such, sufficient criteria had been satisfied to set aside the discretion exercised by the master in allowing a joinder and amendment. On the defence case, the application to strike out and for further or better particulars should also be successful for the same reasons. Mr Abbott suggested that the strict way to proceed would be to ask that both orders of the master be set aside, the joinder rescinded and leave to amend rescinded. That would then allow the plaintiffs to bring another application for joinder with a proper pleading. Alternatively, the matter could be resolved by giving the plaintiff leave to amend their pleading to satisfy the defendants’ complaints (if it could), or if not, then the joinder could be rescinded and the pleas struck out.
Mr Hoffmann submitted that the plaintiff had applied for the joinder of Nugan Estate in order to avoid a multiplicity of proceedings, and to ensure that in the interests of justice all necessary and proper parties were before the court. He said that the master’s order had ensured that this was the case. In support of this submission, the plaintiff pointed to the factual background to the proceedings, as set out in the affidavit of Ms Hoskyns of 1 June 2004. In her affidavit, Ms Hoskyns deposed to the fact that the invoices for payment were in fact rendered not to NG but to Nugan Estate. Furthermore, a document that the plaintiff was going to discover indicated that in the course of dealings under the Agreement, the plaintiff had been dealing with Nugan Estate. Mr Hoffmann submitted that there was thus some confusion as to whether the proper party had been joined in the form of NG, and that consequently joinder of Nugan Estate was sought as well. The plaintiff submitted that there was an evidentiary foundation before the master such as to justify the exercise of his discretion, in the form of Ms Hoskyn’s affidavit, and submitted that there had been no attack on that evidence by the defendants.
On the plaintiff’s case, if Nugan Estate had, in the event, defences under the terms of the contract, or otherwise pleaded a case that it was never notified and discovery bears that out, then its rights would be preserved, in the sense that it could bring an application at that point and extricate itself from the proceedings. In terms of the exercise of the discretion, therefore, the plaintiff submitted that it had established a foundation in material fact justifying the master’s orders for joinder, and enabling the court to refuse the defendants’ strikeout application. Accordingly, the plaintiff submitted that the appeal should be dismissed, that the strikeout application should fail as the defendants had failed to establish that the plaintiff’s claim as pleaded was so untenable that it could not possibly succeed.
Conclusion
I turn first to the matters raised with respect to the appeal. In my opinion, there was sufficient information before the master to justify him in making the order sought by the plaintiff for the joining of Nugan Estate Pty Ltd as a defendant. It is therefore unfortunate that Ms Lane was not properly prepared to present an argument in opposition to that order. Nevertheless, it is regrettable that the master did not accede to the application by Ms Lane for the matter be adjourned, even for a short period, to permit her to put a more informed argument before the court. She had clearly attended under a misapprehension that the matter would be set down for argument at a later date, and if that opportunity had been provided the procedural morass which has since ensued might well have been avoided. As a result of the orders made by the master, however, the plaintiff has since filed an amended statement of claim that, on the face of it, pleads an arguable case against Nugan Estate. It seems to me that at this stage of the proceedings the issues raised on appeal have been subsumed in the later proceedings. I therefore consider that the matter is now more appropriately addressed by way of the application for specific directions, rather than by the appeal.
In my opinion, there is substance in the defendants’ complaints with respect to the pleadings and I consider they should be immediately addressed. I propose to make an order that the plaintiff provide further and better particulars of their pleadings consistent with the particulars sought by the defendant in the notice for specific directions dated 23 July 2004. I note, however, that in the Mouldens’ letter the defendants indicated an intention to amend the notice for specific directions, but it is not clear that this has occurred. In the circumstances, I will hear the parties as to the exact terms of the order for particulars. If the matter is resolved by the provision of appropriate particulars, then the joinder can stand, otherwise, the defendants can pursue their application to strike out the joinder of Nugan Estate as a party. In those circumstances, I think it is appropriate to make an order dismissing the appeal, but I will hear counsel further as to that matter, as well as the question of costs.