| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : EVANS -v- COLLICA [2013] WADC 151 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 17 SEPTEMBER 2013 DELIVERED : 10 OCTOBER 2013 FILE NO/S : CIV 1183 of 2013 BETWEEN : JOSEPHINE EVANS Plaintiff
AND
ELENA MARIA COLLICA
Defendant
Catchwords: Practice and procedure - Application to strike out statement of claim - Principles Legislation: Nil Result: Application dismissed
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Representation: Counsel:
Plaintiff : Mr J Fiocco
Defendant : Mr P M McGowan
Solicitors:
Plaintiff : Fiocco's Lawyers
Defendant : John Benari & Associates
Case(s) referred to in judgment(s):
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161
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1 DEPUTY REGISTRAR HEWITT: This application was commenced by a chamber summons filed 30 May 2013 and seeks that the plaintiff's statement of claim be struck pursuant to r 19 of the Rules of the Supreme Court 1971 and under the inherent jurisdiction of the court on the grounds that:
2 The application was filed a few days out of time but the plaintiff takes no point in regard to that and therefore I grant the extension of time which is sought in the application and proceed to consider the merits of the application. 3 My first comment is nothing whatever is presented to justify any findings that this action is an abuse of the process of court and I regard that proposition as completely unsupported and unfounded. 4 In reality the application which proceeded before me was that the statement of claim did not set out a reasonable cause of action. I see nothing in the pleading under attack which might be said to prejudice, embarrass or delay the fair trial of the act and the efforts of counsel appeared to me to be focused on whether or not the pleading adequately set out in a viable cause of action. 5 The test to be applied is not whether the plaintiff is likely to win or lose on the facts which are pleaded but whether there is identified within the pleading a deficiency which dooms the plaintiff's case to failure. The application is merely to strike out, not to dismiss the action, therefore if such a deficiency is identified, it would be open for the plaintiff to substitute a fresh statement of claim and proceed with the action assuming of course that statement of claim was in adequate form. 6 I have been assisted in the preparation of these reasons by the summary of argument which has been filed by the plaintiff which I consider accurately sets out, in an abbreviated form, the causes of action which are pursued by the plaintiff. I reproduce that summary below: 4. The claim is based on the following facts: Para 3 As at January 2012 the defendant was owed about $70,000 by Cannington National which that company had been unable to repay. (Page 4)
Para 10 In 2011/12 the defendant acted as mortgage broker and agent for the plaintiff to raise $1.88 million in mortgage finance. Para 11 The defendant's dealings with the plaintiff went well beyond being a mortgage broker so that the defendant attended meetings with the plaintiff's solicitor and was authorised to negotiate with the ATO for the plaintiff. Para 13 -16 The plaintiff was paid $265,000 which the defendant knew. Para 17 The defendant advised the plaintiff to lend money to Carrington National. Para 18 The plaintiff accepted that advice. Para 20 The defendant informed Carrington National that the plaintiff would make a loan of $150,000. Para 21 - 23 Security documents for the loan were sent to the defendant who did not send them to the plaintiff so that if the plaintiff advanced funds they would be unsecured. Para 30 From 3 - 6 February 2012 the defendant negotiated for Carrington to pay her $70,000 from the plaintiff's money so that the defendant could have part of her loan repaid. Para 33 - 36 In March 2012 the defendant advised the plaintiff to make a further advance of $50,000 when she knew the money already advanced was unsecured. Para 37 The plaintiff made the further advance. Para 49 The defendant's conduct breached her duty of care to the plaintiff as a mortgage broker. Para 52 The defendant's conduct was in breach of her fiduciary duty as agent. Para 55 The defendant's conduct was misleading or deceptive. 7 To which I would add that the money and most interest on it has been lost. (Page 5)
8 In the case of Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161 the chief justice when dealing with a strike-out application made the following observations at page 4 of his reasons: Before dealing with this specific application, I would observe that both I and the other members of this Court are firmly of the view that interlocutory disputes of this kind must be actively discouraged. In many cases, interlocutory disputes, particularly dispute relating to pleading issues, consume very substantial amounts of time and expense on the part of both the parties and the Court. In many cases, the time and expense involved in the consideration and resolution of the interlocutory dispute is entirely disproportionate to its significance to the just and effective resolution of the case as a whole by mediation or trial. For this reason, this Court will use the existing powers available under the Rules of the Supreme Court ('the Rules') and if necessary amend the Rules to actively discourage disputes of this kind. In very general terms, interlocutory disputes of this kind will only be entertained by the Court if the time and expense involved in their resolution is proportionate to the significance of the dispute to the just and effective resolution of the case. This principle is, in my view, already inherent in the provisions of the Rules when read as a whole, including in particular O 1 r 4A and r 4B, O 29 and O 29A. 9 The purpose of a pleading is to set out all the matters which a plaintiff needs to establish in order to entitle that plaintiff to the relief which is sought, and to inform the defendant of the nature of the case it faces so as to be able to properly prepare a defence to the claim. The statement of claim is some 19 pages long and every paragraph for approximately 16 of those pages is under attack for some alleged inadequacy or another. On my reading of the statement of claim it sets out a cause of action which is accurately reflected in the plaintiff's submissions which I have reproduced earlier. Certain aspects of the claim are more soundly based than others. Amongst the more problematic aspects of the plaintiff's claim is the suggestion that the circumstances of the relationship between the plaintiff and the defendant created a fiduciary duty in the defendant. It seems to me that it is quite likely at the trial of this action that a judge would not find such a duty to be established by the facts which are pleaded. That does not mean that the facts are incapable of being interpreted to create a duty and additionally the facts which are relied upon are facts which support the various other causes of action which are pursued by the plaintiff, which are not in my view the least problematic. The introduction of the fiduciary duty obligation simply invites the judge to consider the facts as they are presented and to conclude that a special relationship imposing fiduciary duties upon the (Page 6)
defendant was created by those facts. If the judge does not so find, the facts are nonetheless still relevant to the remainder of the action. 10 I regard the fiduciary aspect of the plaintiff's claim as the weakest portion of the statement of claim but it does nothing to prejudice or embarrass the defendant or to preclude the prospect of a fair trial or to delay the proceedings or anything of the kind. The facts upon which the duty is said to be based will be before the court whether such a duty is pleaded or whether it is not. That part of the pleading does nothing to impede the proper progress of the action. 11 I see nothing in the statement of claim which will prevent the defendant from pleading to the various causes of action which are pursued or creating any confusion as to what the thrust of the claim which is levelled against her is and how to defend it. This is in my view an application which is doomed to fail and should be dismissed accordingly.
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