Forward v BIRMAN

[2003] WADC 275

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   FORWARD -v- BIRMAN [2003] WADC 275

CORAM:   REGISTRAR KINGSLEY

HEARD:   11 NOVEMBER 2003

DELIVERED          :   11 DECEMBER 2003

FILE NO/S:   CIV 829 of 2001

BETWEEN:   GRAHAM ROBERT FORWARD

Plaintiff

AND

JEREMY ROBERT BIRMAN
Defendant

Catchwords:

Practice - Application to strike out plaintiff's reply - Turns on own facts

Legislation:

Nil

Result:

Plaintiff is granted leave to file and serve a reply

Representation:

Counsel:

Plaintiff:     Mr H Robinson

Defendant:     Mr M Patterson

Solicitors:

Plaintiff:     Haydn Robinson

Defendant:     Philip Lafferty

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

Nil

Case(s) also cited:

Francis v Francis [1952] VLR 321

Herbert & Anor v Vaughan & Ors [1972] 3 All ER 122

Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

1. REGISTRAR KINGSLEY:  This is the defendant's application to strike out the plaintiff's reply.  The plaintiff's claim against the defendant is by way of guarantee.  The plaintiff pleads that on its proper construction, by a Deed dated 1 August 1996 made between the plaintiff as creditor, Stephen Forward as debtor and the defendant as guarantor the debtor acknowledged he was indebted to the plaintiff for $50,000.  The debt was to be repaid by yearly instalments and the payment of the instalments was guaranteed by the defendant.

2. The defendant in his defence pleads that the acknowledgment of debt does not constitute a guarantee given by him.  The defendant denies that the document is a Deed.

3. Plaintiff's counsel submits that the defendant's defence is directed to two issues:

   (a)is the document a Deed

   (b)is there consideration for the Deed

   and the reply is directed to those issues.  Defendant's counsel submits that the reply raises a substantially different factual mix, and raises a new cause of action, estoppel.  The appropriate course, submits defendant's counsel, is for the plaintiff to amend the statement of claim.

4. A plaintiff cannot raise, in a reply, a new cause of action because a reply cannot make any allegation of fact, or raise any new ground of claim inconsistent with the statement of claim.  A reply must not contradict or depart from the statement of claim.  The proper function of a reply is to raise in answer to the defence any matters which must be specifically pleaded which makes the defence not maintainable or which might otherwise take the defendant by surprise or raise issues of fact not arising out of the defence.

5. Plaintiff's counsel submits that par 1 of the reply puts into the pleading all the facts necessary to support the conclusion that there was consideration for the agreement.  In my opinion par 1 does not depart from the statement of claim.  The consistent assertion of the plaintiff is that the guarantor is bound by the Deed, for which the plaintiff asserts there is consideration.

6. Paragraph 2 of the reply seeks to raise an estopple argument.  The plaintiff's counsel categorises the estopple as a law common estopple, that is, an estoppel by representation confined to existing facts.  That form of estoppel is properly pleaded in a reply – as opposed to a promissory estoppel, which is properly pleaded in the statement of claim.

7. I am of the opinion that in so far as par 2 seeks to plead an estoppel, it is properly raised in a reply.  However, I am not persuaded that par 2 of the reply is a proper pleading.  The pleas raised in par 2.3 and par 2.4 appear to spring from nowhere and do not appear to have any basis in the pleaded case.

8. Accordingly, I give leave to the plaintiff to file and serve a reply.  The plaintiff is to bring in a fresh reply within 21 days of publication of these reasons.  I will hear counsel on the fresh reply, and on the issue of costs.