| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GLOBAL WEB PTY LTD -v- D.A.N. TECHNOLOGY PTY LTD & ORS [2002] WADC 125 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 14 MAY 2002 DELIVERED : 21 JUNE 2002 FILE NO/S : CIV 3333 of 2000 BETWEEN : GLOBAL WEB PTY LTD Plaintiff
AND
D.A.N. TECHNOLOGY PTY LTD
First Defendant
FEI LIN
Second Defendant
CONNIE LEE
Third Defendant
Catchwords: Practice and procedure - Western Australia - Practice and the roles of the Supreme Court of Western Australia - Application to amend statement of claim - Trade Practices Act - Turns on its facts
(Page 2)
Legislation:
Nil
Result: Application dismissed Representation:
Counsel:
Plaintiff : Mr R C Ioppolo
First Defendant : Mr M Curwood
Second Defendant : Mr M Curwood
Third Defendant : Mr M Curwood
Solicitors:
Plaintiff : McAuliffe Williams & Partners
First Defendant : Arns & Associates
Second Defendant : Arns & Associates
Third Defendant : Arns & Associates
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 DEPUTY REGISTRAR HARMAN: The plaintiff seeks leave to amend its statement of claim in order to claim damages for misleading and deceptive conduct under the provisions of the Trade Practices Act and the Fair Trading Act.
2 That application is opposed. The onus is upon the plaintiff. 3 The primary issue raised by the defendants is that the allegations of breach cannot be reconciled with the allegations as to conduct. 4 The representations alleged by the plaintiff to constitute relevant conduct are that the first defendant already had or would have the means to provide to the plaintiff during the month of June 2000, 1,000 applicants for the plaintiff's Internet services. 5 The particular of the allegation of falsity is to the effect that the first defendant told the plaintiff that a post-representation advertising campaign had not been effective as it had not brought in enough customers to refer to the plaintiff. 6 As to each of the propositions made in relation to the conduct, falsity is at best implicit in the contention as to the failure of the campaign. It is conceivable that an express representation may allow for the construction of an implied representation, however that result would depend upon an additional allegation of material fact in order to found the implication. In my opinion the plaintiff cannot seek to establish a case on what is at best implicit in a pleading. 7 There is no cogent pleading of a case founded upon the representation that the first defendant had or would have the means to provide the plaintiff with 1,000 applicants for Internet services during the month of June 2000. 8 The defendants raised a similar issue in relation to a particular of conduct which appears as follows: "The whole disposition of the second defendant in communicating to Patrick Ng and John Gao a sense of confidence that the first defendant would have no problem in referring 1,000 customers to the plaintiff during the month of June 2000."
(Page 4)
9 In my opinion the terms 'the whole disposition' and 'a sense of confidence' are the antithesis of proper pleading. They conceal rather than expose the plaintiff's case.
10 The proposed pleading fails the test of what constitutes a proper pleading. Accordingly, the application fails.
|