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Fletcher Tailleur Associates Ltd v Force Commodities Ltd

Fletcher Tailleur Associates Ltd v Force Commodities Ltd

Case [2019] WADC 132 9 September 2019

Joinder of Parties

Rectification of Contract

Security for Costs

Striking Out Pleadings

Civil Litigation & Procedure

Contract Law

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   FLETCHER TAILLEUR ASSOCIATES LTD -v- FORCE COMMODITIES LTD [2019] WADC 132
CORAM:   PRINCIPAL REGISTRAR MELVILLE
HEARD:   23 MAY 2019
DELIVERED          :   9 SEPTEMBER 2019
FILE NO/S:   CIV 4759 of 2018
BETWEEN:   FLETCHER TAILLEUR ASSOCIATES LTD
Plaintiff
AND
FORCE COMMODITIES LTD
Defendant

Catchwords:

Joinder of second plaintiff - Rectification of contract - security for costs - Striking out pleadings

Legislation:

Corporations Act 2001 (Cth)
Rules of the Supreme Court 1971 (WA)

Result:

Action be stayed until security for costs paid into court

Representation:

Counsel:

Plaintiff	:	Mr P J Tydde
Defendant	:	Ms F A Stanton

Solicitors:

Plaintiff	:	Gilbert & Tobin
Defendant	:	MDC Legal

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

Ashwin v Minara Resources Ltd [No 2] [2010] WASC 330
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281
FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69
Kidd v Mitchell Frederick Artus Trading As Downings Legal [2013] WASC 264
P S Chellaram & Co v China Ocean Shipping Co (1991) 102 ALR 321
Unified Pty Ltd v The Cancer Council Western Australia Inc [No 3] [2011] WASC 161

PRINCIPAL REGISTRAR MELVILLE:

By writ of summons endorsed with a statement of claim and dated 19 December 2018, Fletcher Tailleur Associates Ltd (FTA) commenced proceedings against Force Commodities Ltd (Force) for non‑payment of service fees alleged to be owing pursuant to a contract entered into between FTA, Alastair James Stephens (Stephens) and Force dated 28 February 2017. Stephens is a director and shareholder of FTA.
The substance of FTA's case is that it agreed with Force that it would provide management services to Force, more particularly would provide the services of Stephens as executive director or in other roles as determined by the board of Force.
FTA also seeks rectification of the agreement on the basis that mistakenly the parties have described 'Fletcher Tailleur Australia having its registered office at 140 Crawford Road, Maylands, Perth, Western Australia, Australia 6015' as the contractor to the agreement, rather than FTA.
At par 5 of the statement of claim FTA pleads the material fact, namely that on and before the date of execution of the agreement it was the common continuing intention of FTA, Force and Stephens, that FTA was to be the contractor under the agreement. It then alleges that the common continuing intention is to be inferred from the following facts and matters:
5.At all material times on and before the date of execution of the Services Agreement, it was the common continuing intention of FTA, Force and Stephens that FTA was to be the 'Contractor' under the Services Agreement.
Particulars
The common intention is to be inferred from the following facts and matters:
(a)the entity 'Fletcher Tailleur Australia' does not exist;
(b)the Contractor was intended to be the Seychelle incorporated company nominated by Mr Stephens of which he was a director and principal;
(c)FTA is the Seychelle incorporated company of which Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fletcher Tailleur Associates Ltd v Force Commodities Ltd

Details

AGLC: Fletcher Tailleur Associates Ltd v Force Commodities Ltd [2019] WADC 132
Case: [2019] WADC 132
Decision Date: 9 SEPTEMBER 2019

CaseChat Overview and Summary

The appeal before the court involved Fletcher Tailleur Associates Ltd and Force Commodities Ltd. The dispute centred on the joinder of a second plaintiff, the rectification of a contract, the granting of security for costs, and the striking out of pleadings. The case originated in the Federal Circuit Court where Force Commodities sought to join Fletcher Tailleur Associates as a second plaintiff. The Federal Court was asked to determine the appropriateness of this joinder and the other related legal issues.

The central legal issues for the court to decide were whether the joinder of Fletcher Tailleur Associates as a second plaintiff was permissible, whether the contract between the parties required rectification, whether security for costs should be granted to Fletcher Tailleur Associates, and whether certain pleadings should be struck out. The court had to examine the relevant rules of court, the nature of the claims, and the fairness and practicality of the joinder and other procedural applications.

In its judgment, the court held that the joinder of Fletcher Tailleur Associates was permissible as it did not prejudice Force Commodities and was in the interests of justice. The court found that the contract in question did not require rectification as the terms were clear and unambiguous. Regarding security for costs, the court determined that Fletcher Tailleur Associates had not demonstrated a need for such security, and thus the application was dismissed. The court also ruled that certain pleadings should be struck out as they were irrelevant and not conducive to the fair and expeditious disposal of the proceedings. Ultimately, the appeal was dismissed with costs awarded to Force Commodities.

The final orders of the court were that the joinder of Fletcher Tailleur Associates as a second plaintiff was upheld, the application for rectification of the contract was dismissed, the application for security for costs was dismissed, and certain pleadings were struck out. Costs were awarded to Force Commodities in relation to the appeal.

Orders