Fletcher Tailleur Associates Ltd v Force Commodities Ltd - [2020] WADC 79

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   FLETCHER TAILLEUR ASSOCIATES LTD -v- FORCE COMMODITIES LTD [2020] WADC 79
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   2 JUNE 2020
DELIVERED          :   16 JUNE 2020
FILE NO/S:   CIV 4759 of 2018
BETWEEN:   FLETCHER TAILLEUR ASSOCIATES LTD
First Plaintiff

ALISTAIR JAMES STEPHENS
Second Plaintiff

AND

FORCE COMMODITIES LTD
Defendant

Catchwords:

Practice and procedure - Adequacy of answer to answers to request for further and better particulars - Turns on its own facts

Legislation:

Nil

Result:

Application successful in part

Representation:

Counsel:

First Plaintiff	:	Mr P J Tydde
Second Plaintiff	:	In person
Defendant	:	Ms F A Stanton

Solicitors:

First Plaintiff	:	Gilbert and Tobin
Second Plaintiff	:	Not applicable
Defendant	:	MDC Legal

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

Nil

DEPUTY REGISTRAR HEWITT:

In this matter I am required to determine a chamber summons filed by the defendant seeking further and better answers to the defendant's request for particulars of the further amended statement of claim which has been filed by the plaintiffs to this action.
The application has a history which relates back to an earlier application by the defendant to strike out the statement of claim which was heard by Principal Registrar Melville. Principal Registrar Melville concluded after hearing argument that it was not appropriate to strike out various aspects of the amended statement of claim under attack since he considered if there were any defects within them, they could be cured by the provision of further and better particulars. Such a request was made and answered on 20 April 2020. The defendant considered the answers to be inadequate and filed a summons on 7 May 2020 seeking further answers in response to the request and it is that application that is before me.
In order to understand the matters in issue it is necessary to understand a little of the case itself. The defendant wished to avail itself of the services of Mr Stephens, the second plaintiff, as the CEO of the defendant company. To fulfil that ambition a services agreement was prepared following a draft submitted by Mr Stephens. The services agreement named Fletcher Tailleur Australia as a contracting party. The registered office of that entity was given as 140 Crawford Road, Maylands. That address is a property owned by Mr Stephens. Fletcher Tailleur Australia does not exist as a corporate entity, a fact apparently known to Mr Stephens since the execution on behalf of that purported entity is simply the letters 'FT'.
The plaintiff's action depends upon the rectification of the agreement to substitute for Fletcher Tailleur Australia, a company incorporated in the Seychelles which is the present plaintiff, Fletcher Tailleur Associates Limited. In order for such a rectification to be achieved it is necessary to demonstrate that the common intention of the parties was that the present plaintiff was to be the contracting party. The claim advanced by the plaintiffs is that the service agreement was terminated in circumstances which entitle the first plaintiff to a substantial payment.
It is also noted that invoices rendered to the defendant for work performed by Mr Stephens were from an associated nominee, Annecy Associates. The reason for that state of affairs is fairly obvious. Since Fletcher Tailleur Australia did not exist it was necessary for the funds remitted by the defendant to be received by some entity which did exist and presumably had a bank account. These factors suggest that the naming of Fletcher Tailleur Australia was not an accident or oversight, rather a deliberately undertaken course of action.
Those observations bring me to par 5 of the statement of claim in its present form which dates from 8 May 2020 which states as follows:
At all material times on and before the date of execution of the Service Agreement, it was the common continuing intention of Force and Stephens that Stephens was to be engaged by Force under the Services Agreement, and an entity of which Stephens was the principal, as chosen by Stephens, being FTA, was to be the 'Contractor' under the Service Agreement.
That common intention of course is vital if the services agreement is to be rectified. As I have commented certain of the information which is before me militates against it being the intention of Stephens that this Seychelles company should in fact be the contracting party and it is no doubt matters of that kind which led the defendant to request the further and better particulars under consideration of this application and to pursue the matter when it considered the responses to be inadequate.
Request one of the request for further and better particulars deals with the allegation that the parties 'contemplated' the matters particularised in pars 5(aa)(i) and (ii). An answer has been given which carries with it the rider that further particulars may be provided after disclosure. In regard to the rider in my view it should be struck out. The particulars provided may not support the proposition which is advanced by the plaintiff but do deal with the factual basis upon which the proposition is based and will confine the plaintiff to those matters and only those matters when this matter goes to trial. I consider the question as being adequately answered and save for the strike out of the rider I see no need for any further response.
The next request concerns par 5(ab) which inquiries about what is described as an implied allegation. The plaintiff has indicated to me that there is no intended implied allegation and as much has been made known to the defendant prior to this hearing. To put the matter beyond doubt I intend to record that concession from the plaintiff in a formal way and on doing so the question of any implied implication will disappear. In fact I believe that the correspondence which is passed between the parties would effectively put any such proposition to rest but to make certain of the matter I intend to formally record it in my orders. My comments in relation to request 2.1 apply equally to request 2.2, 2.3 and 2.4.
Request 3 relates to par 5(c)(iii) of the statement of claim and seeks particulars of agreed facts, matters, circumstances and things relied upon in support of the allegation that Stephens executed the service agreement on behalf of the first plaintiff. In my view that proposition is clear and I struggle to understand how it needs to be clarified, or even could be clarified by any further explanation. Whether the proposition is in fact accurate is a matter upon which I have expressed some doubt earlier in this decision but my task is not to examine whether the proposition advanced is correct or otherwise but whether it is clear and capable of understanding. For my part I cannot really imagine how this question could be answered save by reference to evidence which may be called by the plaintiff to support the proposition. I therefore take the view that request 3 need not be answered.
The final question concerns par 5(c)(iv) of the statement of claim in which it is alleged that the first plaintiff performed the service agreement. In answer, the plaintiff repeats and relies on par 8 of the statement of claim and par 1 of the reply. I have reviewed the paragraphs referred to and find them of little help in understanding the answer. Paragraph 1 of the reply refers to an arrangement for Annecy to render invoices to the defendant and that invoices were accepted and paid. Likewise par 8 refers to the issuance by Annecy of invoices and their payment.
The papers make it clear that Mr Stephens did occupy the role of CEO of the defendant but the question focuses not on his performance but the performance by the first plaintiff namely the Seychelles company. The request requires the plaintiff to explain what it was that company did which might be regarded as satisfaction of the agreement. In my view the issuing of invoices by a nominated company and their payment says nothing about what the first plaintiff did by way of performing the services agreement and I consider that a better answer must be provided.
My decision therefore is that the answer to request:
1.Is satisfactory save that the rider concerning further particulars should be deleted.
2.That the recording in a formal way the fact that no implication or inference is said to be drawn from the matters raised in par 5(ab) is sufficient to dispose of the matters raised by those requests.
3.That the question which is posed in respect of par 5(c)(iii) of the statement of claim is difficult to answer and in my view the proposition advanced by the pleading is perfectly clear. Whether or not it is correct is another matter.
4.The answer to par 5(c)(iv) is inadequate and a further and proper answer must be provided.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DH
Court Officer
10 JUNE 2020