Hardie Finance Corporation Pty Ltd v Ahern
[2003] WASC 58
HARDIE FINANCE CORPORATION PTY LTD -v- AHERN & ANOR [2003] WASC 58
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 58 | |
| Case No: | CIV:1426/2000 | 19 MARCH 2003 | |
| Coram: | MASTER SANDERSON | 26/03/03 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | HARDIE FINANCE CORPORATION PTY LTD (ACN 008 992 105) MARCUS AHERN FERGUSON CORPORATION PTY LTD (ACN 008 943 646) |
Catchwords: | Practice and procedure Application for leave to request further and better particulars of statement of claim Turns on own facts |
Legislation: | Nil |
Case References: | Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Perre v Apand Pty Ltd (1999) 198 CLR 180 Boys & Ors v Geneva Finance Ltd (Receiver and Manager Appointed) [2001] WASCA 376 Dow Corning Australia Pty Ltd v Girys [2001] WASCA 361 Palermo Nominees Pty Ltd & Anor v Broad Construction Services Pty Ltd & Anor [1999] WASC 233 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MARCUS AHERN
First Defendant
FERGUSON CORPORATION PTY LTD (ACN 008 943 646)
Second Defendant
Catchwords:
Practice and procedure - Application for leave to request further and better particulars of statement of claim - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Application refused
Category: B
Representation:
Counsel:
Plaintiff : Mr M L Bennett
First Defendant : Mr G I Macnish
Second Defendant : Mr G I Macnish
Solicitors:
Plaintiff : Bennett & Co
First Defendant : Cocks Macnish
Second Defendant : Cocks Macnish
Case(s) referred to in judgment(s):
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Perre v Apand Pty Ltd (1999) 198 CLR 180
Case(s) also cited:
Boys & Ors v Geneva Finance Ltd (Receiver and Manager Appointed) [2001] WASCA 376
Dow Corning Australia Pty Ltd v Girys [2001] WASCA 361
Palermo Nominees Pty Ltd & Anor v Broad Construction Services Pty Ltd & Anor [1999] WASC 233
Wyong Shire Council v Shirt (1980) 146 CLR 40
(Page 3)
1 MASTER SANDERSON: This is an application by the first and second defendants for leave to request further and better particulars of the amended statement of claim. The request is made well after the 30 days allowed under O 20 r 13(6) and accordingly leave is required. If leave is granted the defendants would have the plaintiff provide the particulars within 14 days.
2 It is convenient to deal first with the question of leave. The defendants did not make any request for particulars of the statement of claim which was filed on 26 May 2000, nor did they request particulars of the amended statement of claim which was forwarded to them on 9 July 2002 and filed on 1 August 2002. The time in which particulars should have been requested expired on or about 1 September 2002. This application was not brought until 20 December 2002. Furthermore, the amendments made to the statement of claim relate to the plaintiff's quantification of loss and damage. The elements of the cause of action and the matters concerning which particulars have been requested were not effected by the amendments. On one view of the matter, any particulars which were to have been requested should have been requested before the end of June 2000.
3 The explanation for the delay is to be found in two affidavits of Graeme Innes-Ker Macnish ("Mr Macnish"), the first sworn 17 December 2002, the second sworn 24 February 2003. Before dealing in detail with these affidavits I should briefly summarise the nature of the claim brought by the plaintiff against the defendants.
4 The plaintiff alleges that at all material times it was the owner and lessor of retail premises forming part of a multi-storey commercial building known as South Shore Piazza. From about 21 May 1997 Pac-Am Restaurants (WA) Pty Ltd ("Pac-Am") leased these premises and carried on the business of a restaurant under the name of Spaggedies. The plaintiff alleges that the defendants negligently seized property from the defendants on 21 March 1998 and wrongfully detained and damaged this seized property. It is alleged by the plaintiff that in doing so the defendants intentionally interfered with Pac-Am's business and consequently inflicted economic harm on Pac-Am. It is said that as a result of this economic harm and damage, Pac-Am ceased to carry on the business of Spageddies, appointed an administrator, entered into receivership and was subsequently wound up. The plaintiff says that as a result of the fate befalling Pac-Am, the plaintiff lost rental, lost payment by Pac-Am of variable outgoings and lost the benefit of its lease agreement with Pac-Am.
(Page 4)
5 On 24 March 1998 Pack-Am commenced proceedings against the defendants for loss and damage it said it suffered consequent upon the alleged seizure of the property by the defendants. These proceedings were settled and discontinued on 17 June 2002. Mr Macnish says in his affidavit that Pac-Am was ordered to provide discovery in its proceedings against the defendants on 27 April 2000. Eventually discovery was provided on 18 September 2000. Mr Macnish says that once Pac-Am had provided discovery in its proceedings, he reached the view that the plaintiff was likely to discontinue its action because he concluded that Pac-Am's discovered documents show that Pac-Am was unable to pay its debts as and when they fell due prior to the events of 21 March 1998. On that basis he thought the plaintiff's claim was unlikely to succeed because it would be unable to show any loss: see par 9 of the affidavit of 17 December 2002. Consequently, no particulars were requested from the plaintiff.
6 Mr Macnish also says that on 5 September 2000 the parties were ordered to attend mediation. A mediation conference was held on 25 January 2001 but no settlement was reached. Mr Macnish says that between 5 September 2000 and 25 January 2001 he took no steps because he anticipated a possible settlement: see par 12 and 13.
7 Between 25 January 2001 and 15 April 2002 neither party took any steps in the proceedings. On 15 April 2002 the plaintiff's solicitors wrote advising the defendant' 'solicitors they would seek to amend the statement of claim. A copy of the amended statement of claim was forwarded to the defendants' solicitors on 9 July 2002. By letter dated 23 July 2002 the defendants' solicitors advised the plaintiff's solicitors they would not oppose amendments to the plaintiff's statement of claim: see par 15, 16 and 17.
8 By letter to the plaintiff's solicitors dated 25 October 2002 the defendants' solicitors wrote indicating they had not sought particulars of the plaintiff's statement of claim and indicating they now sought such particulars. By letter dated 5 November 2002 the plaintiff's solicitors wrote back saying they would consider providing particulars once they had received a request. The request was forwarded to the plaintiff's solicitors on 14 November 2002. Having received no response, on 20 November 2002 the defendants' solicitors wrote asking whether the request would be answered. By letter dated 22 November 2002 the plaintiff's solicitors advised they would not answer the request: see par 18 to 20.
(Page 5)
9 On 25 November 2002 Mr Macnish telephoned Mr Bennett, the plaintiff's solicitor, asking whether he (Mr Bennett) would reconsider the position and answer the request. On 13 December 2002 at a case evaluation conference Mr Bennett advised a solicitor from the defendants' solicitor's office that answers to the request would not be provided: see par 23 and 24.
10 Mr Macnish's second affidavit deals largely with events which occurred after a case evaluation conference held on 25 May 2001. Essentially, it relates to a failure on the part of the plaintiff's solicitors to provide a statement of contentions for use at the mediation conference: see par 6 to 12. It also deals with a failure on the part of the plaintiff to provide timely discovery. There is a further claim that the discovery now provided is defective and that the defects have not been remedied by provision of a supplementary list of documents: see par 13 to 17. Counsel for the plaintiff, during the course of his oral submissions, made it plain that the plaintiff regards the discovery provided as adequate and that any claim to the contrary will be resisted. The purpose of the second affidavit, as I understand it, is to demonstrate that there has been a failure on the part of the plaintiff to comply with programming orders made from time to time. That being the case, it is said to lie ill with the plaintiff to now complain about delay on the part of the first and second defendants in relation to the request for particulars.
11 Having read the affidavit material filed in support of this application, I was minded to grant the defendants the leave they sought. However, having heard oral argument on the matter, expressed in Mr Bennett's usual direct and robust manner, I have concluded that leave ought not be granted. In my view the delay is too long and the circumstances of the delay are not such as to warrant the grant of leave. Mr Macnish in his affidavit is quite candid - he did not request particulars for tactical reasons. He reached the view, no doubt after careful consideration, that this action was unlikely to proceed. He therefore decided not to put his client to the expense involved in requesting particulars. He decided not to pursue particulars while there was a prospect of the matter settling at a mediation conference. Thereafter, tactically, the action was best left to lie rather than stirring the plaintiff into action with a request for particulars. It is now too late. The tactics cannot be changed.
12 In my view it is not to the point that the plaintiff may, from time to time, not have complied with case management orders. There are procedures which are open to a party who is dissatisfied with an opponent's lack of compliance with case management directions. There
(Page 6)
- may be cases when the overall conduct of the matter could excuse a failure of one party to take a procedural step. But this is not one of those cases. If particulars were necessary to allow the defendants to properly understand the case they had to meet, that should have been obvious to the defendants' solicitors by the end of June 2000. Indeed, in his affidavit, Mr Macnish does not suggest at that stage he did not think particulars were required. As I have said, it was a tactical decision on his part not to seek those particulars. Any default on the part of the plaintiff (if indeed there had been any prior to the end of June 2000) played no part in Mr Macnish's decision. Subsequent defaults do not seem to me to alter the position. For these reasons I would refuse leave to the defendants to request particulars. However, having heard full argument on the matter, lest I be wrong on the question of leave, I will deal with the requests themselves.
13 Request 1 refers to par 8 of the statement of claim. By par 8 it is pleaded that the defendants, after seizing the property, detained and withheld it and only returned it when compelled to do so by an injunction. Request 1 relates to the first defendant. It is pleaded that the first defendant was a legal practitioner who attended the premises when the goods were seized. The plaintiff is asked for particulars of how the first defendant detained the property. By request 2, which relates to par 10 of the statement of claim, the plaintiff is asked how it is said that the first defendant failed to return the property.
14 By par 7.1 of the statement of claim the plaintiff pleads that the defendants were joint tortfeasors. On that basis a request related solely to the first defendant is defective. I would not have ordered that requests 1 and 2 be answered.
15 Request 3 relates to par 14 of the statement of claim. By par 14 the statement of claim it is alleged that the seizure of the property by the first and second defendants represented to "the public at large, to patrons of the restaurant, to Pac-Am's business associates, creditors, tradesmen and suppliers, that Pac-Am was unable to pay its debts and was insolvent". By request 3 the defendants sought particulars of how the acts pleaded in par 14 "was or were capable of amounting to" or "in fact amounted to" the representation as pleaded to each of the groups referred to in par 14 of the statement of claim. With respect, that is clearly a request for evidence. As the plaintiff says, the plea adequately identifies the basis upon which the plaintiff says that the representation was made. Nothing more is required.
(Page 7)
16 Requests 4 and 5 relate to par 15.1 and 15.2 of the statement of claim. These two paragraphs of the statement of claim plead that the defendants knew that Pac-Am was the lessee of the premises and that the plaintiff was the owner of the premises. Particulars of both paragraphs are provided in the pleading. In my view these particulars are adequate and nothing more need be provided.
17 Request 6 relates to par 15.3 of the statement of claim. By par 15.3 it is pleaded that it was foreseeable that the plaintiff would suffer loss and damage by reason of the defendants' acts. What the defendants are seeking amounts to particulars of foreseeability. It is not appropriate to seek particulars of such a plea. I would not order that such particulars be provided.
18 Request 7 relates to par 15.5(d) of the statement of claim. That paragraph pleads that the plaintiff's financial interests in the premises were susceptible to damage as a consequence of the type of actions undertaken by the defendant. This is a plea of vulnerability - a party must establish that it is vulnerable if it is to satisfy the Court that a duty of care has arisen, such as would render the defendants liable for purely economic loss suffered by the plaintiff: see Perre v Apand Pty Ltd (1999) 198 CLR 180. Particulars of this plea are not appropriate. Furthermore, request 7(ii) is not a proper request, nor is 7(iii).
19 Request 8 deals with par 16 of the statement of claim. Paragraph 16 is the plea of the duty of care. This is one of those cases where it is necessary to consider the nature of the loss suffered and the relationship of the parties to determine whether or not a duty of care exists: see Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. It is not appropriate to seek particulars of a plea of this nature. Moreover par 16 refers to par 1 through to 15 as being the material facts which give rise to the duty of care.
20 Request 9 deals with par 17.1 and seeks particulars of the plaintiff's "legitimate interest" referred to therein. This again picks up what was said in the High Court decision of Perre v Apand (supra). Particulars of such a plea are not necessary.
21 Request 10 deals with par 19.1 of the statement of claim. Paragraph 19.1 refers to conduct of the defendants pleaded in par 6 to 10 and then pleads appointment of an administrator, receiver and liquidator. Reference is also made to Pac-Am ceasing to carry on business in June 1999 and it is alleged that from March 1998 Pac-Am was unable to pay its
(Page 8)
- rent and variable outgoings. The request made by the defendants is not a proper request. For the purposes of this case, what is pleaded in par 19.1 is material facts. Clearly the defendants dispute that their actions were responsible for the occurrence of pleaded events. There would not, however, seem to be any doubt that the events themselves occurred. By that I mean it is not in dispute between the parties that in or about July 1999 an administrator was appointed. It is up to the plaintiff on the evidence to establish the line of causation between the actions of the defendants and the pleaded event. To provide any more detail than is to be found in par 19.1 would be to provide evidence. That is not appropriate.
22 Request 11 deals with par 19.1(e). This request is in the form of an interrogatory rather than a request for particulars. It is not appropriate that the plaintiff be required to answer this request.
23 In the circumstances then I would dismiss the defendants' application. It is proper and appropriate that the defendants pay the plaintiff's costs of the application, including the reserved costs.
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