Dale v Dennis - [2003] WADC 10

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DALE & ANOR -v- DENNIS [2003] WADC 10

CORAM: REGISTRAR KINGSLEY

HEARD: 28 NOVEMBER 2002

DELIVERED : 17 JANUARY 2003

FILE NO/S: CIV 1661 of 2000

BETWEEN: STEPHEN DALE
PAUL ZEMUNIK
Plaintiffs
AND
JOHN DENNIS
Defendant

Catchwords:

Practice - Application to join a further plaintiff - Application to amend statement of claim - Turns on own facts

Legislation:

Nil

Result:

Application allowed as to joinder of further plaintiff
Application refused as to amending the statement of claim

Representation:

Counsel:

Plaintiffs: Mr G M Abbott
Defendant: Mr P E Harris

Solicitors:

Plaintiffs: Askew & Co
Defendant: Lewis Blyth & Hooper

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

REGISTRAR KINGSLEY: By minute of substituted statement of claim filed 25 November 2002 ("the Minute") the plaintiff seeks to substitute his statement of claim and add a third plaintiff. The plaintiffs' claim revolves around a series of agreements made between the plaintiffs and the defendant. The agreements are:
1.The Pontiac Agreement.
2.The NASCAR Agreement.
3.The VIN 59 Agreement.
4.The Land Cruiser Agreement.
Other than the NASCAR Agreement the basic premise in the agreements is that the plaintiffs would perform work, pay for the cost of materials and transport vehicles for the defendant for remuneration. The NASCAR Agreement provides for the first plaintiff being a driver of vehicles for the defendant in NASCAR motor racing events throughout Australia.
The defendant submits that the plaintiffs' case has not been pleaded clearly and concisely, nor with the required degree of particularity. The defendant submits this pleading ought not be allowed.
At the outset I have found the plaintiffs' minute very confusing, particularly in relation to the schedule attached to the pleading.
As to the Pontiac Agreement the plaintiffs plead that the Pontiac Agreement was made partly orally and partly by conduct. The Pontiac Agreement provided that in consideration of the defendant paying $250 per week the second plaintiff would store the Pontiac and provide his services as a mechanic for the race preparation of the Pontiac. Insofar as it was oral the Pontiac Agreement was made during discussions between the second plaintiff and defendant in or about July 1999. The second plaintiff pleads that it was an express term of the Pontiac Agreement that the defendant would, in addition to a $250 fee, pay for the cost of any parts and materials and the second plaintiff was not required to undertake any engine repairs. It is to be noted that this is the first mention of a $250 fee and there is some doubt as to whether the $250 refers to the weekly sum of $250 or to the sum of $250 given to the second plaintiff as particularised in par 6(c).
At par 9 of the Minute the second plaintiff pleads he undertook work, provided services and incurred expenses pursuant to the Pontiac Agreement and defines that work and services as the "Second Plaintiff's Pontiac Work". Particulars of the Second Plaintiff's Pontiac Work is purportedly set out in Sch 1 and Sch 2. However a reading of Sch 1 and Sch 2 does not differentiate between the Second Plaintiff's Pontiac Work as particularised and any other works. In my opinion that makes it impossible for the defendant to separate what work in fact was done pursuant to the Pontiac work and any other work the subject of this pleading.
Further Sch 2 is headed Plaintiff One and for the purposes of par 9 of the statement of claim there appears to be no relationship to work done under the Second Plaintiff's Pontiac Work.
The difficulties in relation to Sch 1 and Sch 2, purporting to be the particulars of work done, also applies to the other agreements that are pleaded. For example at par 19 the plaintiffs plead that firstly the first plaintiff will, or alternatively, on behalf of the third plaintiff, undertake certain work in relation to the NASCAR's. This work is defined as the "First Plaintiff's NASCAR Work" and particulars of the First Plaintiff's NASCAR Work is set out in Sch 1, Sch 2 and Sch 3. Secondly at par 19 the second plaintiff pleads he undertook work in relation to the NASCAR's and his work is pleaded as the "Second Plaintiff's NASCAR Work". However both the First Plaintiff's NASCAR Work and the Second Plaintiff's NASCAR Work are set out in Sch 1, Sch 2 and Sch 3 without differentiating which plaintiff did what work. Schedule 1 refers to Plaintiff two only, Sch 2 refers to plaintiff one only and Sch 3 simply is entitled supplier invoices. Accordingly the defendant has no idea what work was undertaken in relation to the First Plaintiff's NASCAR Work or the Second Plaintiff's NASCAR Work, or any work the subject of this pleading.
At par 10 of the Minute the second plaintiff pleads that the second plaintiff's Pontiac work was undertaken at the request of the defendant. This plea is echoed at par 20 with respect to the first plaintiff and second plaintiff and at par 29 and par 40. The request is within the context of agreements made between the plaintiffs and defendant. In my opinion those paragraphs are irrelevant to the plea of breach of contract.
At par 13 the plaintiffs seek to plead an alternative claim in quantum meruit. The claim is pleaded as an alternative to par 6 to par 12 previously pleaded. However there is no incorporation of those paragraphs within the alternative claim. An alternative claim must be able to stand alone. Paragraph 13 is deficient because the factual context leading to the alternative claim has not been pleaded. It is relevant to a plea of quantum meruit that a request by the defendant to the plaintiffs has been made. It is in this alternative plea that the request, and the attendant particulars, ought be pleaded. For these reasons, par 13 and par 26 are deficient.
The defendant's counsel attacks par 7(2) and par 8 submitting that the express term is inconsistent with the implied term. I see no inconsistency. The express term of the agreement excludes engine repairs (other than general servicing). Paragraph 8 pleads that if the second plaintiff undertook engine repairs then, impliedly, he would be paid for that work.
Paragraph 8 particularises the hourly remuneration of the second plaintiff and the basis for implying the term. I am of the opinion that par 8 is a proper pleading.
The defendant's counsel takes issue with par 6 submitting that the substance of discussions forming the express agreement have not been pleaded. This submission is also directed to par 15(b). The plaintiffs' plea in par 6 of the Minute is simply the Pontiac Agreement was made during discussions in July 1999 - in par 15(b) the NASCAR Agreement is made between August 1999 and January 2000.
In my opinion, the plaintiffs have not given the substance of conversations and accordingly is not a proper pleading.
The defendant's counsel takes issue with the implied term pleaded at par 17(1) and par 17(2) of the Minute submitting that the implied term is inconsistent with the express term pleaded in par 16. I agree with that submission in relation to par 17(1).
Paragraph 16(1) of the Minute pleads as an express term that the defendant would do certain things. The consideration for that express term is pleaded at par 16(2). In my opinion it is inconsistent with the pleas at par 16(1) and par 16(2) to now plead an implied term in relation to par 16(1) as is sought to be pleaded in par 17(1).
I see no issue with par 17(2) of the Minute. Paragraph 17(2) refers to matters going beyond the express terms of the NASCAR Agreement and hence can be properly pleaded as arising by way of implication.
Paragraph 18 of the Minute in my opinion does not relate to any express term or implied term arising from the NASCAR Agreement. That plea does not give rise to any cause of action under that agreement and ought be struck.
Defendant's counsel takes issue with some confusion arising in the pleas in par 26 and par 27 of the Minute. Paragraph 26 seeks to ground a claim in quantum meruit whereas par 27 appears to ground a claim in unjust enrichment. However par 26(4) pleads that it is unjust or unconscionable for the defendant to retain the benefit of work done, a plea arising in equity.
In my opinion the plea in par 26(4) confuses the cause of action. A cause in quantum meruit is an action of assumpsit grounded on a promise, express or implied, to pay for work done. A plea of unjust enrichment is one that flows from equity. In my opinion par 26(4) - and par 13(4) - are improper pleas and ought be struck.
For these reasons, in my opinion, the Minute is not one that can be allowed in as a pleading.
The plaintiffs also seeks to join a third plaintiff as a party to the action. There is little issue with this application provided there is a proper cause supporting the third plaintiff's rights of action. I will give leave to join the third plaintiff as a party to the action.
I will hear counsel on the form of orders and on costs.