| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ENGINEERING IDEAS PTY LTD -v- BELTRECO LIMITED & ANOR [2002] WADC 138 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 29 MAY 2002 DELIVERED : 12 JULY 2002 FILE NO/S : CIV 560 of 1999 Consolidated with No 2431 of 2001
BETWEEN : ENGINEERING IDEAS PTY LTD (ACN 076 897 982) Plaintiff
AND
BELTRECO LIMITED (ACN 008 836 422)
First Defendant
PACIFIC DUNLOP LTD (ACN 004 085 330)
Second Defendant
Catchwords: Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to strike out pleading - Turns on its facts
Legislation: Nil
(Page 2)
Result:
Dismissed Representation:
Counsel:
Plaintiff : Ms F C E Davis
First Defendant : Nil
Second Defendant : Mr P D Whight
Solicitors:
Plaintiff : Phillips Fox
First Defendant : Jackson McDonald
Second Defendant : Pynt McKay
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 DEPUTY REGISTRAR HARMAN: The second defendant seeks to strike out part of the statement of claim.
2 For the purposes of the application a third party, Centaur, entered into a written agreement with the plaintiff by which the plaintiff would erect and furnish an industrial tank. The lining for the tank had been recommended to Centaur by its manufacturer, the second defendant as the appropriate lining. Subsequent to its installation the lining broke down. 3 The relevant parts of the pleading for the purposes of the application are as follows:- "24. Further or alternatively, in the circumstances pleaded in paragraphs 14 to 16, it was reasonably foreseeable that if the second defendant recommended the Redback HR70 rubber lining and Centaur specified the Redback HR70 rubber lining in its specification for the process tanks then: 24.1 Centaur would contract with a person for the supply and installation of the process tanks, including the specification of the use of Redback, (which would be supplied by the second defendant). 24.2 The person who contracted with Centaur for the supply and installation of the process tanks would also rely upon the suitability of Redback rubber lining for use on the process tanks. 24.3 If the Redback rubber lining was not fit for use on the process tanks, the person who contracted with Centaur would suffer financial harm. 25. In the premises, in addition to the duty of care owed by the second defendant to Centaur, the second defendant also owed a duty of care to those who contracted with Centaur, in this case the plaintiff, both in making the representations as to suitability of the Redback rubber lining in the process tanks and in supplying the rubber lining with the process tanks, to ensure that the Redback rubber lining was fit for use in the process tanks.
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4 The onus is on the applicant to establish that it is appropriate to strike that part of the pleading. The test properly applied is whether the pleading is sufficient to facilitate the determination of the claim raised by it. For the purposes of the application it is appropriate to accept the allegations of material fact in the pleading. 5 At par 24 the plaintiff seeks to establish a basis for the existence of a duty of care owed to it by the defendant. That pleading expresses a causal connection between the recommendation and the specification. The pleading does not allow for exposure to the recommendation other than in the form of the specification. Yet the reliance pleaded at par 24.2 is expressed to refer not to the specification but to the recommendation. I accept that may be the result for which the plaintiff contends, however it is not supported by any allegation of material fact. There is no foundation for the case that the plaintiff relied upon the representation of the defendant. The test of that proposition is had by considering that even if it was left to the defendant to plead the contractual specification it would do so as an intervening process not in justification of the claim.
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6 A further consideration is that the loss could only have been sustained by the plaintiff in the process of it removing the lining. That loss could only be sustained by the plaintiff as a consequence of a contractual obligation to the third party. In that context there is no pleading of a sufficient causal connection between that loss and the reliance pleaded to sustain the claim for relief.
7 I suspect that it may be the case and perhaps properly so that it will be difficult to sustain any pleading which fails to disclose features of the contractual relationship between the plaintiff and the third party. Otherwise it would conceivably be the case that the plaintiff could voluntarily incur loss in order to perfect a cause of action. 8 It follows that in my opinion the pleading is inadequate and ought to be struck out.
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