DeLaval Pty Ltd v Thomas Richard Paltridge as Trustee for the Nellybrook Trust
[2019] VCC 443
•31 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-05343
BETWEEN
| Plaintiff | |
| DELAVAL PTY LTD (ACN 004 210 459) | |
| and | |
| THOMAS RICHARD PALTRIDGE AS TRUSTEE FOR THE NELLYBROOK TRUST (trading as R & TR Paltridge) (ABN 95 023 958 113) | First Defendant |
| And | |
| THOMAS RICHARD PALTRIDGE | Second Defendant |
| and | |
| THOMAS RICHARD PALTRIDGE AS TRUSTEE FOR THE NELLYBROOK TRUST (trading as R & TR Paltridge) (ABN 95 023 958 113) | Plaintiff by Counterclaim |
| and | |
| DELAVAL PTY LTD (ACN 004 210 459) | Defendant by Counterclaim |
---
JUDGE: | Her Honour Judge A Ryan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | On the papers | |
DATE OF RULING: | 31 May 2019 | |
CASE MAY BE CITED AS: | DeLaval Pty Ltd v Thomas Richard Paltridge as Trustee for the Nellybrook Trust & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 443 | |
REASONS RULING
---
Subject: PRACTICE AND PROCEDURE
Catchwords: Application for leave to file fourth amended defence and counterclaim – applicable pleading principles – application opposed – claims to be properly repleaded
Legislation Cited: Civil Procedure Act 2010;
County Court Civil Procedure Rules 2008
Cases Cited:Bishopsgate Insurance Australia Limited (in liq) v Deloitte Haskings and Sells (1999) 3 VR 863;
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541;
Euromark Ltd v Smash Enterprises Pty Ltd [2019] VSC 299;
Hoh & Ors v Frosthollow Pty Ltd & Ors [2014] VSC 77;
McGuirk v University of New South Wales [2009] NSWSC 1424;
Reichel v Paulyn Investments Pty Ltd & Ors [2008] VSC 413;
Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (a firm) [2015] FCA 1098
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Kaskani | Frenkel Partners |
| For the Defendant | Mr R Ross-Smith | Degaris Lawyers |
HER HONOUR:
Introduction
1 The first defendant and plaintiff by counterclaim (“the Trustee”) and the second defendant (“Paltridge”), seek leave to file a proposed Fourth Amended Defence and Further Amended Counterclaim dated 17 December 2018.
2 The proposed pleading was served pursuant to an order of her Honour Judge Marks dated 11 December 2018. Leave was granted to the defendants to apply to the court to amend its pleading in the event the plaintiff and defendant by counterclaim (“DeLaval”) did not consent to the proposed amendment. DeLaval opposes the application for leave.
3 In support of the application, Paltridge relies upon the affidavits of:
(a)Nicholas Banks Kidman sworn 4 February 2019;
(b)Nicholas Banks Kidman sworn 12 February 2019;
(c)Nicholas Banks Kidman sworn 20 February 2019.
4 DeLaval relies upon an affidavit of Maria Kerhoulas sworn 19 February 2019, together with exhibits totalling 399 pages.
5 The matter was listed in the Duty Court on 21 February 2019. Counsel for Paltridge had been given permission to appear by telephone link from South Australia. The matter was adjourned because there was insufficient time available to hear the application on that day and the quality of the telephone link was poor.
6 The parties were ordered to file and serve written submissions relating to the alleged deficiencies in the proposed pleading. DeLaval’s submissions were filed on 27 February 2019 and Paltridge’s submissions on 12 March 2019.
7 Following an administrative mention on 12 March 2019, the court informed the parties it would determine the pleading dispute on the papers.
The claims
8 This proceeding was commenced by Writ on 14 November 2017. An amended statement of claim was filed on 13 February 2018 (“ASC”). Mr Paltridge is sued as first defendant in his capacity as Trustee for a trust known as the Nellybrook Trust and alternatively, as second defendant in his own name.
9 DeLaval is engaged in the business of developing, manufacturing and marketing equipment, and systems for milk production and husbandry. Paltridge is the owner of and/or the representative of the owner of a diary situated in South Australia.
10 DeLaval pleads in paragraph 4 of the ASC that it entered into a contract with the Trustee or alternatively, Paltridge in 2012 (“the 2012 agreement”) whereby DeLaval agreed to supply and install various milking and plant equipment. DeLaval subsequently supplied the equipment and completed installation on or about 1 March 2013. DeLaval issued a tax invoice for the contract price of $217,800, which sum remains unpaid.
11 As a result of the defendants’ failure to pay the tax invoice, DeLaval sues for the outstanding debt, together with interest calculated under the 2012 agreement.
12 By their Defence, the defendants admits entry into the 2012 agreement with DeLaval, but say that the agreement was between DeLaval and the Trustee (paragraph 5). The defendants also admit the equipment was supplied and installed and a tax invoice was issued for the sum of $217,800. The defendants deny they are obliged to pay the debt claimed because of a breach of warranty by DeLaval that the equipment would be of merchantable quality and the equipment did not meet specified performance criteria. The defendants claim a set off of any amount payable against the amounts claimed in the counterclaim.
13 The Trustee counterclaims for various forms of relief arising from several causes of action, namely, misleading and deceptive conduct, breach of contract, negligence, and unconscionable conduct The amounts sought in the counterclaim vastly exceed the quantum of the claim.
Previous strike out applications
14 DeLaval has made two successful strike out applications prior to this application. The first was heard on 11 May 2018 by his Honour Judge Woodward. His Honour gave the defendants leave to file and serve a Third Amended Defence and Counterclaim and ordered the defendants pay DeLaval’s costs thrown any by reason of the re-pleading.
15 Upon receiving Paltridge’s amended pleading, DeLaval’s solicitors wrote to the solicitors for Paltridge asserting that there were numerous deficiencies in the pleading. Paltridge chose not to re-plead and DeLaval brought a second strike out application that was heard by his Honour Judge Macnamara on 19 July 2018. His Honour gave the defendants leave to file and serve a Fourth Amended Defence and Amended Counterclaim and ordered the defendants again pay DeLaval’s costs.
The alleged deficiencies - general complaints
16 DeLaval makes various general complaints about the proposed counterclaim before descending into specific objections.
17 DeLaval complains that a number of paragraphs are substantially in the same form as appears in a previous draft which was struck out in July 2018, and that they continue to display the same deficiencies. These paragraphs are: 7(a) and 7(d), 7(c), 9, 12, 13 and 13(a), 20(a), 25, and 29.
18 By reason of this conduct, DeLaval submits Paltridge is in breach of its obligations under the Civil Procedure Act 2010 (Vic) (“CPA”). In particular, the overarching purpose in s9 to facilitate a just, timely and cost effective resolution of the issues in dispute. It was also said that Paltridge’s conduct is contrary to ss.22, 23, 24, and 25 of the CPA.
19 Paragraphs 7(a), 7(d), 9, 12, 13(a) and 20(a) refer to representations made in 2008 and 2009. A criticism is made that several of the alleged representations are not attributed to DeLaval and in those circumstances, the defect could not be overcome by the provision of further and better particulars. These representations are subsequently relied upon to form the basis of causes of action in the remainder of the Further Amended Counterclaim. Given these paragraphs remain deficient, DeLaval contends the better course is to strike out the whole of the Fourth Amended Statement of Claim rather than striking out specific paragraphs.
20 DeLaval submits the court should not grant leave to allow amendment if it would be liable to strike out had it appeared in the original pleading.[1] DeLaval also referred to the summary of pleading principles by Derham AsJ in Hoh & Ors v Frosthollow Pty Ltd & Ors.[2]
[1]McGuirk v University of New South Wales [2009] NSWSC 1424 at [18]
[2][2014] VSC 77 at 13-20 and also McGuirk at [21]-[35]
21 One of the matters relied upon by DeLaval is the significant prejudice it claims will be caused if the amendments are allowed because of the delay by Paltridge in pursuing the counterclaim. As a consequence of that delay, the prejudice to DeLaval is the inevitable diminution of memory and the consequent unfairness in having to meet allegations long after the events in question. The events complained of arose in 2008 and 2009, some nine or 10 years ago.
22 In support of the proposition that prejudice can be drawn by reason of significant delay, DeLaval relied upon Bishopsgate Insurance Australia Limited (in liq) v Deloitte Haskings & Sells,[3] and also to Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (a firm),[4] where Gleeson J stated at 183:
“I also accept that the amendments, if allowed, would cause significant non-compensable prejudice to the defendants by increasing the unavoidable strain of the litigation on them. That prejudice would be particularly acute because of the length of time since the events the subject of the proceedings, which exacerbates the strain of preparing a defence due to loss of recollection, and because of the large expansion of the matters in issue, including the issue of states of mind in 2007 and 2008.”
[3](1999) 3 VR 863 at [40]-[43] and [60]
[4][2015] FCA 1098
23 In addition, DeLaval relied upon Brisbane South Regional Health Authority v Taylor[5] in support of the effect of delay and the quality of justice and, in particular, the effect upon a defendant if an action is allowed to be brought long after the circumstances which gave rise to it have passed. In addition, the public interest requires that disputes be settled as quickly as possible.[6]
[5](1996) 186 CLR 541
[6]See McHugh J at 552-553
24 The defendants submitted the suggestion of prejudice by reason of delay was speculative and unsupported. They argued that plaintiff had not suggested, and there was certainly no evidence for it, that any witness had told DeLaval that they cannot remember sufficient details now.
25 Whilst the issue of delay is a relevant factor relating to presumptive prejudice, I am not ultimately persuaded that any of the causes of action relied upon in the counterclaim should not be permitted for that reason alone. Other than the usual lapse of memory that might occur relating to events dating back to 2008, I am not satisfied that Laval has established any real prejudice over and above this such that it could be said it could not obtain a fair trial.[7]
[7]See Kennedy J in Euromark Ltd v Smash Enterprises Pty Ltd [2019] VSC 299 at [88] –[92]
26 The defendants argue the complaints about the proposed pleading are unmeritorious with only two exceptions. It is not entirely clear from the written submissions what those exceptions are but I have assumed it relates to a concession that particulars should be given to paragraphs 37(e) and 38 of the counterclaim. It is said by the defendants that DeLaval should know who attended meetings on its behalf and can interview those witnesses and take proofs. It is said the claims are not speculative and that DeLaval is apprised of the case it has to meet such that it cannot be embarrassed. As for particulars, the defendants say they have given the best they can.
Specific complaints
27 Turning to the specific deficiencies, DeLaval complains about the following paragraphs.
Paragraph 2(a)
28 The complaint here is that by not specifying which defendant, whether it is Paltridge in his personal capacity or in his capacity as the Trustee of the Nellybrook Trust, the pleading fails to comply with Rule 5.06 of the County Court Civil Procedure Rules 2008. This rule requires a party who sues in a representative capacity to endorse on the original process a statement showing the capacity of the party in whose name the claim is made. It is said that Paltridge must himself know whether he was engaging in the transactions either personally or in his capacity as a Trustee.
29 It was noted there is an inconsistency in the allegations in the Defence. For example, paragraphs 4 and 5 of the Fourth Amended Defence admit that Paltridge entered into the 2012 agreement in his capacity as Trustee of the Nellybrook Trust, but in paragraph 35(b) of the Further Amended Counterclaim, the same agreement is said to be entered into by Paltridge, which is defined as being either Paltridge in his personal capacity or in his capacity as Trustee of the Nellybrook Trust. Similarly, paragraph 11(d) of the Defence pleads Paltridge is not a party to the 2012 Agreement. Consequently, it was said that paragraph 2(a) should be struck out.
30 It is clear there is an inconsistency in the case pleaded by the defendants as to who was the contracting party. Whilst a plaintiff may sue defendants in the alternative because the plaintiff is unsure who the correct defendant to sue is, the defendants must be aware which one of them was the relevant contracting party. They say they are doing so responsively to the alternative plea made by the plaintiff. In my view, it is incumbent upon the defendants to say which party contracted with DeLaval being a matter within their knowledge. An admission has already been made in the Defence that the relevant party was the Trustee. I consider it is not now open for the defendants to pick up in paragraph 2(a) the allegations made by the plaintiff about the defendants being sued in the alternative and it is unclear why they seek to do so. The proposed counterclaim is therefore inconsistent with the admissions pleaded in the defence. Accordingly, paragraph 2(a) should not be permitted to stand.
Paragraphs 7(a) and 7(d)
31 These paragraphs relate to representations which were said to have been made at a meeting held on 16 June 2008. Criticism is levelled that the paragraphs fail to identify who, on behalf of DeLaval, made the representations. It alleges representations having been made by Dr Kendra Kerrisk from Future Dairies, without specifying which representations were made by DeLaval and which were made by her. As a result of the vagueness of the allegations, DeLaval does not know the case that is being alleged against it. The defendants argue they cannot provide any further detail as Paltridge cannot presently recall who said what at the meeting and accept they are bound by the particulars given.
32 The other matter alleged is the prejudice caused, as referred to in Bishopsgate, because of the delay in pursuing its claim. The allegations concern matters which are more than 10 years old.
33 In respect of these paragraphs, it is also noted that causes of action would have accrued in 2011, 2012 and no later than 2013. DeLaval says there is no explanation as to why these matters could not have proceeded at an earlier time. It is said that the failure to bring these claims at an earlier time has caused substantive prejudice to DeLaval, relying upon the matters mentioned by McHugh J in Brisbane South. Accordingly, it is submitted that these paragraphs should be struck out.
34 Rule 13.03 of the County Court Civil Procedure Rules 2008 requires the effect of any document or the purport of any conversation be pleaded. The precise words of the conversation need not be pleaded unless those words are themselves material. The issue then is whether the purport of the oral representation has been adequately pleaded.
35 DeLaval is entitled to need to know what representations are alleged to have been on its behalf by its employees so it knows the case it has to meet. If representations made by Dr Kerrisk are sought to be attributed to the plaintiff, then those representations should be clearly identified and the basis upon which it alleged that DeLaval is caught by this conduct. The other difficulty is that because the defendants do not know who said what at the meeting relied upon, this points to an evidentiary lack such that the claim appears speculative. That being the case, such an amendment should not be permitted because it would not survive a summary judgment application and in those circumstances, leave should not be given.[8] For all these reasons, I am of the view that these paragraphs are inadequate and should be struck out.
[8]Mandie v Memart Nominees Pty Ltd [2016] VSCA 4
Paragraph 7(e)
36 It is alleged that this paragraph is frivolous and vexatious and embarrassing, and also causes presumptive prejudice. DeLaval contends the allegation that DeLaval’s mere presence at an information session is insufficient to support a claim that DeLaval endorsed representations made by an unrelated third party (Future Dairies) and, therefore, the allegation that DeLaval made the representations cannot be sustained. Nor can its presence support the allegation that DeLaval gave actual or apparent authority either at the time or after the supposed representations were made by Future Dairies.
37 It was noted that Paltridge does not plead any material facts in support of any actual or apparent authority having been provided prior to the representations being made.
38 In addition, it was said that the allegations were confusing and roll up a number of legal concepts. It was also pointed out that there is a presumptive prejudice to DeLaval because of the delay and the unfairness in having to meet allegations long after the events in question.
39 The basis upon which Dr Kerrisk’s conduct can be attributed to DeLaval, whether because she was the plaintiff’s agent or otherwise needs to be clearly articulated. I consider paragraph 7(e) as currently pleaded is defective and should be struck out.
Paragraph 8(a)
40 This paragraphs pleads that Mr Lalich of Dairy Solution Centre recommended a course of action to Paltridge, and the particulars regarding that discussion refer to the “regular engagement” by Paltridge of Dairy Solution Centre. The complaint is that Paltridge should, and has, failed to plead:
(a)the terms of each engagement;
(b)when and how Mr Lalich was engaged; and
(c) the fulfilment, if any, of that engagement.
41 The defendants say they are not required to provide the information sought. I agree that the level of detail sought is not necessary for DeLaval to understand the allegations put against it. I will permit paragraph 8(a) to stand.
Paragraphs 9, 10, 10(a) and 10(b)
42 These paragraphs relate to representations said to be made at a meeting in July 2008 by Dr Kerrisk of Future Dairies. No DeLaval employee is said to have attended that meeting. Despite this, it is alleged at paragraph 10(b) that DeLaval endorsed the representations made by Dr Kerrisk or gave Dr Kerrisk actual or implied authority to make the representations. Criticism was made that none of the matters pleaded give rise to the legal conclusions relied upon. It was said that the allegations were frivolous and vexatious and, if permitted to stand, would increase the cost and length of the trial. Again, the submission was made that presumptive prejudice relying on Bishopsgate would be caused to DeLaval if the allegations were permitted to stand.
43 It was noted that DeLaval would need to rely on the recollection of the third party, Dr Kerrisk, because no DeLaval personnel were present at a meeting that was alleged to have occurred some 10½ years ago.
44 I consider this paragraph is deficient as the basis upon which it can be said that representations were endorsed by DeLaval or made with its actual or implied authority is not properly pleaded. Consequently, it should be struck out.
Paragraphs 12, 12(a) and by reference paragraphs 20 and 20(a)
45 It was said that these paragraphs failed to state with sufficient clarity the case that DeLaval has to meet. It was said that the allegations were vague and embarrassing as well as frivolous and vexatious. It was noted that the allegations referred to representations made at a meeting held on 3 December 2009 at the Sliver Birch Motel in Mount Gambier.
46 Paragraphs 20 and 20(a) rely upon the representations allegedly made during the meeting on 3 December 2009 to imply terms into a contract which was entered into some three months earlier on 16 October 2009. DeLaval notes that self-evidently terms cannot be implied into a contract based on representations made three months after the contract was entered into.
47 The paragraphs were also attacked by way of the speculative nature of the pleading and presumptive prejudice was again relied upon.
48 I consider the allegations in paragraphs 12 and 12(a) are inadequate and need to be redrafted. They are vague and do not enable DeLaval to know the case it has to meet. The allegations in paragraph 12(a) are rolled up and are unintelligible.
49 Additionally, I consider the criticism that the representations relied upon can be said to form the basis of implied terms into a contract which predates the representations is validly made. Representations made some three months after the formation of the contract cannot form the basis of any terms to be implied into the contract. Accordingly, paragraphs 20 and 20(a) will also be struck out.
Paragraph 13, 13(a) and 20(a)
50 The complaint about these paragraphs is the vagueness of the reference to each of the pre-contractual meetings in paragraphs 13 and 13(a). Further, paragraph 20(a) is also said to be vague by reason of the language used. It was said that the Trustee should plead with some specificity the pre-contractual meetings to which he refers and also the representations made at those particular meetings.
51 Similar considerations apply here as with the preceding objection. I agree that the reference to the pre-contractual meetings is vague and these should be identified. I have already struck out paragraph 20(a). Paragraphs 13 and 13(a) are struck out.
Paragraph 25
52 It was said that Paltridge failed to specify how it was said to be vulnerable to risk and had not provided any material or facts necessary to support such a conclusion.
53 In Reichel v Paulyn Investments Pty Ltd & Ors[9], Kyrou J noted that when pleading vulnerability, it was necessary to refer to the defendant’s want of care as well as alleging the defendant had actual or constructive knowledge of the plaintiff’s vulnerability.[10]
[9][2008] VSC 413
[10]Ibid at [17]
54 I accept that the pleading of vulnerability is unsatisfactory as it fails to allege a want of care on the part of DeLaval or that it had either actual or constructive knowledge of the Trustee’s vulnerability. Consequently, this paragraph should be struck out.
Paragraph 29
55 This paragraph refers to defective works being performed on Paltridge’s property either by Dairy Solution Centre or at the direction of Dairy Solution Centre and fails to plead:
(a)which works Dairy Solution Centre performed;
(b)which works others performed at Dairy Solution Centre; and
(c)particulars regarding the engagement of others, such as the identity of those persons, when those works were conducted, etc.
56 It was said that Paltridge was required to plead with some specificity the work performed by Dairy Solution Centre and also work said to have been performed by others.
57 I am not persuaded that the defendants are required to plead the various matters set out in paragraph 55 above in order for DeLaval to understand the case it has to meet. I will permit paragraph 29 to stand.
Paragraph 46
58 This pleads a conclusion regarding DeLaval’s negligence but does not plead the relevant material facts in support. In the absence of properly pleaded material facts, DeLaval says it is left to speculate as to what are the material facts Paltridge relies upon to conclude that DeLaval was negligent and to conclude that the equipment was incapable of achieving the intended purpose.
59 I consider the negligence claim as pleaded is deficient as it is conclusionary in nature. A duty of care is pleaded in paragraphs 23 to 26. But the factual matters which could give rise to a finding of negligence have not been pleaded with sufficient detail and should be. Further, any matters going to causation should be pleaded as well as the loss and damage said to have been suffered in consequence. I am satisfied that paragraph 46 should be struck out as it fails to plead the necessary elements of a negligence action, in particular, the material facts constituting the negligent acts or omissions.
Paragraphs requiring proper and adequate particulars
60 DeLaval says that the following paragraphs could be remedied, providing proper and adequate particulars are given, namely:
(a)paragraphs 10(c) and 10(d);
(b)paragraph 14(c);
(c)paragraphs 37(a)-(e);
(d)paragraph 47; and
(e)paragraph 50.
61 The defendants concede further and better particulars should be provided for paragraphs 37(e) and 38.
62 I consider further particulars should be given of the paragraphs identified in paragraphs 53 and 54 above.
Conclusions
63 Attached to this Ruling is a schedule which sets out in a summary form the various paragraphs which are the subject of objection, together with a note of the decision I have made in respect of each paragraph. Given that so many of the paragraphs relied upon are defective in form, I accept the submission of DeLaval that the entire pleading should be struck out and leave be given to replead.
64 In light of the history of the matter, the preferable course is to direct DeLaval to file and serve a proposed Fifth Amended Defence and Further Amended Counterclaim and then DeLaval communicate its consent or otherwise before Paltridge is granted leave. In the event consent is not provided, then the defendants may make an application for leave to amend.
65 This is now the third occasion upon which the pleading has been struck out. It is significant, in my view, that despite the earlier orders made by their Honours Judges Woodward and Macnamara, the defendants have failed to cure many of the defects identified and have re-pleaded several paragraphs in substantially the same form. This does raise concerns as to possible breaches on the part of the defendants in respect of the provisions in the CPA as identified by DeLaval.
66 It is now incumbent upon the defendants to ensure that any further pleading does overcome the defects which have been identified on a number of occasions. The defendants should be on notice that the court may not permit any further amendments to be made if the proposed Further Amended Statement of Counterclaim contains similar deficiencies. A stay of the counterclaim may be a possible outcome in the event that these repeated deficiencies are not cured.
67 The orders I propose making are as follows:
(1)leave to file and serve the fourth amended defence and further counterclaim is refused;
(2) the defendants have leave to serve a proposed fifth amended defence and counterclaim;
(3) the plaintiff is to communicate its consent or otherwise to the defendant being granted leave to file a proposed fifth amended defence and counterclaim;
(4) if consent is not provided under paragraph 3 above, the defendants may make an application for leave to amend;
(5)the defendants pay the plaintiff’s costs of and incidental to the defendants’ application to amend and any costs thrown away by reason of the re-pleading by the defendants of the fourth amended defence and further counterclaim, to be taxed on the standard basis in default of agreement.
68 I direct the parties to confer as to a proposed timetable and submit minutes of orders to reflect these reasons. If the parties are unable to agree, the matter will be listed for further hearing.
Certificate
I certify that these 15 pages are a true copy of the reasons for decision of her Honour Judge A Ryan delivered on 31 May 2019.
Dated: 31 May 2019
Associate to her Honour Judge A Ryan
Annexure 1
Summary of Plaintiff’s Objections to Fourth Amended Counterclaim
* Denotes paragraph requiring Proper and Adequate Particulars
[struck out] Refers to application before Judge Macnamara where His Honour struck out various paragraphs of the previous pleading.
| Paragraphs | Summary of relevant allegations | Objection | Decision |
| 2a | D says reference to Paltridge in the Counterclaim means Paltridge in his capacity as trustee unless established by the Plf dealings were in his personal capacity. | Vague and Embarrassing. Inconsistent with pleadings in Defence – see paras [4] and [5] of the Defence cf. 35b of the Counterclaim | Strike out |
| 7a and 7d [struck out] | Oral representations (detailed at [7d]) made to D at the Shepparton Meeting in 2008 by D’s representatives. | Vague and Embarrassing – key representations grouped together without pleading what DeLaval is said to have said/done – McGuirk at [30]; Gunns Limited v Marr at [57] Allegations are more than 10 years old – presumptively prejudicial and oppressive and contrary to public interest | Strike out |
| 7c [struck out] | Future Dairies is sponsored or funded by DeLaval, or a joint venture was entered into. | No basis for allegation in 7c(a) Plaintiff by Counterclaim has been provided the Collaboration Agreement referred to I 7c(b) – DeLaval is not a party to it | Strike out |
| 7e | To the extent any representations alleged to have been made by Dr Kerrisk only, they were endorsed by DeLaval or with its actual or apparent authority | No basis for allegation – purely speculative. Pleading inserted only after complaints at earlier strike out application that representations are not attributed to DeLaval. Vague and Embarrassing – refers to representations being “endorsed” by DeLaval or an agency relationship defined in the future – McGuirk at [30]; Gunns Limited v Marr at [57] Allegations are more than 10 years old – presumptively prejudicial and oppressive and contrary to public interest: Brisbane South at p552-553 Further, collaboration (even if DeLaval is considered to be a party to the collaborative agreement with Future Dairies) is not a basis to establish agency. | Strike out |
| 8a | In 2008, Lalich of Dairy Solutions Centre, in capacity as local agent for DeLaval, recommended that Paltridge attend at Future Dairies to receive advice about the benefits of a VMS of the type offered by DeLaval | Material facts regarding the engagement by the Plaintiff by Counterclaim of Dairy Solution Centre are buried in particulars. · The matters concerning Paltridge’s engagement of diary Solutions Centre is a central matter in issue and ought not be buried in particulars. Proper and adequate pleadings are necessary (Supported by proper and adequate particulars of the regular engagements) in circumstances where the Plaintiff by Counterclaim alleges that Dairy Solution is our agent. | Allow |
| 9 [struck out] | In July 2008 at Future Dairies De Kerrisk stated to Paltridge that by using the VMS the quantity of milk production at the Dairy would increase | Vague and Embarrassing – key representations grouped together without pleading trial what DeLaval is said to have said/done - McGuirk at [30]; Gunns Limited v Marr at [57] Allegations are more than 10 years old – presumptively prejudicial and oppressive and contrary to public interest: Brisbane South at p552 - 553 | Strike out |
| (10, 10a and) 10b | Documents provided to Paltridge at the Future Dairies meetings contained representations that the automated system occurs without human assistance and would reduce milking-related tasks for a farmer (these and representations at [9] called ‘Future Dairies Statements’). It is alleged at [10b] DeLaval endorsed the Future Dairies statements. | No basis of allegation – purely speculative. Pleading inserted only after complaints at earlier strike out application that representations are not attributed to DeLaval. Vague and Embarrassing – refers to representations being “endorsed” by DeLaval or an agency relationship defined in the future – McGuirk at [30]; Gunns Limited v Marr at [57] Allegations are more than 10 years old – presumptively prejudicial and oppressive and contrary to public interest: Brisbane South at p552 – 553 Further, collaboration (even if DeLaval is considered to be a party to the collaborative agreement with Future Diaries) is not a basis to establish agency. | Strike out |
| 10c, 10d* | Further pre-contractual meetings where oral representations made in substantial same terms and effect as those pleaded at [12a] and [12b] | Proper and adequate particulars of the allegations required. | Further and better particulars be provided |
| 12 [struck out] | Further representations made to Paltridge by DeLaval’s agents or employees at meeting at Silver Birch Motel in 2009 that a VMS would: a) reduce production costs b) increase production | Vague and Embarrassing – key representations grouped together without pleading trial what DeLaval is said to have said/done - McGuirk at [30]; Gunns Limited v Marr at [57] Allegations are more than 10 years old – presumptively prejudicial and oppressive and contrary to public interest: Brisbane South at 552 – 553. | Strike out |
| 12a | To the extent that any representation alleged to have been made at silver birch motel were made only by Dr Kerrisk they were endorsed by DeLaval or made with Delaval’s apparent or actual authority. | No basis of allegation – purely speculative. Pleading inserted only after complaints at earlier strike out application that representations are not attributed to DeLaval. Vague and Embarrassing – refers to representations being “endorsed” by DeLaval or an agency relationship defined in the future – McGuirk at [30]; Gunns Limited v Marr at [57] Allegations are more than 10 years old – presumptively prejudicial and oppressive and contrary to public interest: Brisbane South at p552 – 553 Further, collaboration (even if DeLaval is considered to be a party to the collaborative agreement with Future Diaries) is not a basis to establish agency. | Strike out |
| 13 and 13a [struck out] | At Silver Birch Motel meeting and each pre-contractual meeting representatives of DeLaval neither disagreed with or corrected statements of Dr Kerrisk, Lalich or each other re: representations | Vague and Embarrassing – key representations grouped together without pleading trial what DeLaval is said to have said/done - McGuirk at [30]; Gunns Limited v Marr at [57] Allegations are more than 10 years old – presumptively prejudicial and oppressive and contrary to public interest: Brisbane South at p552 – 553 | Strike out |
| 14* | On or around 16.10.09 DeLaval provided quote for VMS to replace existing milking system | Proper and adequate particulars of the allegations regarding “existing miking system” required. | Further and better particulars to be provided |
| 20a [struck out] | It was expressly agreed/agreed/implied from terms of the Purchase Contract that: a) each VMS unit would milk 80 cows b) VMS system would improve milk quality and quantity c) VMS system would reduce working hours | Vague and general propositions – need to plead with specificity the discussions, meetings and representations relied upon to support the allegation. | Strike out |
| 25 [struck out] | Paltridge was vulnerable to risk as: a) he relied upon DeLaval to supply and install VMS system b) there were no reasonable steps he could have taken to protect himself | Vague and general propositions – need to plead with specificity the “vulnerability to risk” as alleged and to adequately plead what protection he required. | Strike out |
| 29 [struck out] | Defects in the installation of the VMS system performed by or at direction of Dairy Solution Centre | Vague and general proposition – need to plead with specificity who performed the works if it was not Dairy Solution Centre and the material facts regarding the directions given by Dairy Solution Centre. | Allow |
| 37(a-e)* | Pre-contractual Representations[11] and Silver Birch Representations[12] were misleading and deceptive | Proper and adequate particulars of the allegations regarding “existing milking system” required. | Further and better particulars to be provided |
| 46 | DeLaval was negligent in the supply and installation of the VMS system | Material facts regarding the VMS’s inability to achieve the intended purpose and DeLaval’s failure to take steps are buried in particulars. · These are critical matters to any negligence cause of action – how it is alleged DeLaval did not meet its duty | Strike out |
| 47* | At the time of executing the purported settlement agreement and the 2012 agreement Paltridge was under significant financial pressure by reason of the ongoing defects and wrongdoings of DeLaval | Proper and adequate particulars of the allegations regarding “significant financial pressure” required and specificity of the “ongoing defects and wrongdoings” alleged to apply. | Further and better particulars to be provided |
| 50* | Paltridge has suffered loss and damage | Proper and adequate particulars of loss and damage required. | Further and better particulars to be provided |
[11] Pleaded at paras 7(d), 8(a), 9, 10, 10(d), 17(a), 17(b) and 17(c)
[12] Pleaded at paras 12(a) and 12(b)
1
8
0