Giblett v Timber Treaters Bridgetown Pty Ltd

[2005] WADC 159

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   GIBLETT & ANOR -v- TIMBER TREATERS BRIDGETOWN PTY LTD [2005] WADC 159

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   24 JUNE 2005

DELIVERED          :   19 AUGUST 2005

FILE NO/S:   CIV 2550 of 2004

BETWEEN:   RICK GIBLETT

TERESA GIBLETT
Plaintiffs

AND

TIMBER TREATERS BRIDGETOWN PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to strike out parts of the plaintiffs' statement of claim - Turns on its facts

Legislation:

Nil

Result:

Application successful

Representation:

Counsel:

Plaintiffs:     Mr P J Hannan

Defendant:     Mr P Mendelow

Solicitors:

Plaintiffs:     Lloyd & Associates

Defendant:     Granich Partners

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

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64

Hadley v Baxendale (1854) 9 Exch 341

Case(s) also cited:

Nil

<p>1(Page 2)

DEPUTY REGISTRAR HARMAN:  By its application filed on 28 February 2005 the defendant seeks to strike out pars 3, 11 and 14 to 17 inclusive of the plaintiffs' amended statement of claim.

1. The plaintiffs' claims against the defendant are founded upon the terms of an alleged contract between the parties whereby subject to their availability, they would transport timber for the defendant to the exclusion of others.  In addition to a claim for breach of contract, at par 11 the plaintiffs plead a claim for loss of opportunity to enter into a further contract with the defendant upon the expiration of the term of the contract and at pars 14 to 17 inclusive, for expectation loss founded upon purchase of equipment.  The onus in the application is upon the defendant; it is required to satisfy the court that it is appropriate to interfere in the process by which the plaintiffs seek to express those claims.

2. I understand that at least for the purposes of the application that it is common ground that prior to the date of the contract, the business for which the defendant would require transport services had been operated for a number of years by an independent corporation with whom the plaintiffs had a similar commercial arrangement. Further that preceding the defendant’s purchase of the business it had been conducted by an administrator under the Corporations Law.

3. For the purpose of establishing the relevant claims the plaintiffs seek to draw upon the history of their engagement with the operation of the business in order to establish the exclusivity of the contractual relationship between the parties.  The defendant submits that in light of the fact that it was not part of the history related by the plaintiffs, what transpired between the plaintiffs and others could not be relevant for the purposes of establishing their claims. 

4. In my opinion the fundamental issue presented by the pleading of the history is whether it provides a sufficient basis to establish that the defendant should be bound.  Such a result could only be achieved upon the plaintiffs establishing that there was a common understanding that the defendant would be bound.  In the absence of such a plea the pleading is insufficient.

5. The next issue that the defendant takes with the pleading is at par 11.  It relies on the dicta of Hadley v Baxendale(1854) 9 Exch 341 to the effect that a party is entitled to recover damages for loss that either would arise according to the usual course of things from breach of contract or such as may be reasonably to be supposed to have been in contemplation of both parties at the time that they made the contract as being the probable result of breach. In Commonwealth v Amann Aviation Pty Ltd(1991) 174 CLR 64 at p 92 Mason CJ and Dawson J said:

   "What was in the contemplation of the parties depends upon a consideration of the terms of the contract in the light of the matrix of circumstances in which it was made.  As we have seen, performance of the contract by Amann would have placed in an advantageous position to secure a renewal of the contract with the benefits that would entail.  The prospect of renewal was a distinct commercial benefit, inevitably contemplated by the parties as ensuring to the advantage of Amann on, and by reason of, its performance of the contract.  It was not an advantage which would accrue to Amann independently of performance of the contract or incidentally.  The corollary is that the parties necessarily contemplated the loss of that prospect as the probable result of a repudiation or fundamental breach of the contract on the part of the Commonwealth." 

6. The defendant draws upon the significance of the expression 'what was in the contemplation of the parties at the time that they entered into the contract.'  Its particular complaint is that there is no allegation at par 11 to that effect.  Furthermore that the particulars of the pleading at pars 1 to 8 inclusive could not, without more, satisfy that test, as they predate the involvement of the defendant in the operation of the business.  In the absence of such a pleading it is my opinion that those particulars be struck out.  It would also follow that the pleading is deficient for want of such an allegation of material fact. 

7. I would also note that at particular 9 the plaintiff refers to the contract pleaded at par 3 and the particulars thereto.  That particular was no doubt intended to inform the defendant of the essential features of the further contract proposed.  Conceivably via that particular it may have been intended that something be drawn from par 3, or the particulars to par 3 (which interestingly include the particulars at pars 4 to 10 of par 11) as features of the processes in play between the parties at or about the time that they entered into the contract.  However, there is so much detail in what is canvassed under par 3 that in my view it is incumbent upon the plaintiff to provide useful particulars of the further contract and specify the support for such an allegation. 

8. The next issue raised by the defendant is as to pars 14 to 17 inclusive of the pleading.  In those paragraphs the plaintiffs present a claim on the basis of loss that they attribute to the defendant.  The claim arises from their purchase of equipment prior to the date of the contract.  They contend that they purchased equipment in the reasonable expectation that they would obtain such a contract with the defendant.  The particulars in support of that allegation are expressed to be those that I have addressed in relation to par 11.  The defendant's contention is again that the particulars said to support the plaintiffs expectation relate to the history of the plaintiffs involvement with the defendants predecessor in title to the business.  In my opinion in the absence of a further allegation of material fact there is simply nothing to connect the defendant with the plaintiffs' expectations.

9. An issue that I have not canvassed to this point which relates to each of the parts of the application concerns the form of the pleading.  The defendant contends that what only appears as particulars should at least be elsewhere pleaded in order to enable the defendant to respond.  The defendant accepted that the form of pleading followed by the plaintiff is permissible but subject to a judgment as to whether material so introduced is likely to be contested by the receiving party such that it would be inappropriate to so plead.  At the very least the volume of potentially contentious material in this case is such that it is my judgment that is inevitable that the receiving party would consider that it ought to been provided with the opportunity to respond.  It follows that the plaintiffs ought to have realised that it would be inappropriate to adopt a form of pleading that would preclude that prospect.

10. It follows that I am satisfied that there is good reason to strike out pars 3, 11 and 14 to 17 inclusive of the statement of claim.