Hi-Tech Telecom Pty Ltd v NEC Australia Pty Ltd (No 2)
[2012] FCA 991
FEDERAL COURT OF AUSTRALIA
Hi-Tech Telecom Pty Ltd v NEC Australia Pty Ltd (No 2) [2012] FCA 991
Citation: Hi-Tech Telecom Pty Ltd v NEC Australia Pty Ltd (No 2) [2012] FCA 991 Parties: HI-TECH TELECOM PTY LTD (ACN 098 008 587) v NEC AUSTRALIA PTY LTD (ACN 001 217 527) File number: NSD 336 of 2012 Judge: ROBERTSON J Date of judgment: 7 September 2012 Catchwords: PRACTICE AND PROCEDURE – pleadings – application to strike out statement of claim or specified paragraphs of the statement of claim – further or alternative application that applicant provide supplementary further and better particulars – particulars in part provided by reference to numerous paragraphs of affidavit material Legislation: Federal Court of Australia Act 1976 (Cth) s 37M Date of hearing: 5 September 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 48 Counsel for the Applicant: Mr GA Laughton SC Solicitor for the Applicant: Axis Legal (Australia) Pty Ltd Counsel for the Respondent: Mr DA Klempfner Solicitor for the Respondent: Middletons
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 336 of 2012
BETWEEN: HI-TECH TELECOM PTY LTD (ACN 098 008 587)
ApplicantAND: NEC AUSTRALIA PTY LTD (ACN 001 217 527)
Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
7 SEPTEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Paragraph 10 of the applicant’s statement of claim filed on 1 March 2012 be struck out.
2.By 28 September 2012, the applicant:
(i)re-plead paragraph 10 and provide the usual particulars as sought in paragraph 15(c) of the respondent’s request for further and better particulars filed on 30 April 2012;
(ii) amend paragraphs 12, 18, 25, 30, 31, 32, 33 and 35;
(iii) provide further and better answers to the requests in the following paragraphs of the respondent’s request for further and better particulars filed on 30 April 2012: 3(b), 4(b), 5(b), 6(c) to 11(c), 12(b), 13(a), 13(g), 14(a), 14(b), 16(a)-(h), 17(a), 17(b), 18(a)-(c), 20(a)-(c), 21(a)-(d), 22(a)-(d), 24(a), 24(b), 26(b), 26(c), 27, 28 and 29-33;
(iv)provide by way of particulars to paragraph 5 the end point for the enquiries and indications referred to in that paragraph;
(v) provide by way of particulars to paragraph 8:
(a)an explanation of what it is alleged constitutes the joint venture referred to in that paragraph;
(b) the usual particulars, as defined in the respondent’s request for further and better particulars filed on 30 April 2012, of the alleged representation or representations;
(vi) by way of particulars to paragraph 11 inform the respondent:
(a)whether the joint venture referred to in this paragraph is the same as the joint venture defined in paragraph 8 of the statement of claim;
(b)how it is said that the representations alleged in paragraphs 6, 7 and 8 give rise to the contractual duties pleaded in this paragraph;
(c)if the applicant contends that each of the duties pleaded are imposed by law then any facts matters and circumstances relied on for that conclusion should be specified;
(vii)give the respondent by way of particulars to paragraph 17 the usual particulars as defined in the respondent's request for further and better particulars filed on 30 April 2012 of:
(a)the request of the respondent;
(b)the knowledge of the respondent;
(c)the purposes referred to;
(d)the reliance; and
(e)the representations;
(viii)inform the respondent by way of particulars to paragraph 30 as to the specific matters referred to in paragraphs 5 to 29 which are alleged to constitute a breach of contract;
(ix)in relation to paragraph 34, provide to the respondent the basis upon which it is alleged that:
(a)the respondent was a fiduciary; and
(b)was under the obligations set out in paragraph 11.a.-11.h.;
(x)in relation to paragraph 42:
(a)identify to the respondent the misrepresentations referred to;
(b)specify the facts, matters and circumstances relied on for the allegation that the respondent did not have reasonable grounds for making the representations;
(xi)inform the respondent by way of particulars to paragraph 46 whether it is alleged that the respondent was also estopped from departing from the promises and representations pleaded in paragraph 6 of the statement of claim.
3.The respondent’s interlocutory application filed on 29 August 2012 be otherwise dismissed.
4.By 26 October 2012, the respondent file and serve its defence to the statement of claim as amended.
5.By 30 November 2012, the respondent file and serve the affidavit evidence on which it intends to rely at trial. In the case of disputed conversations the respondent should file and serve proofs of the evidence proposed to be adduced at trial.
6.Each party bear its own costs of the interlocutory application filed on 29 August 2012.
7.The matter be listed for directions at 9.30am on 5 December 2012.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 336 of 2012
BETWEEN: HI-TECH TELECOM PTY LTD (ACN 098 008 587)
ApplicantAND: NEC AUSTRALIA PTY LTD (ACN 001 217 527)
Respondent
JUDGE:
ROBERTSON J
DATE:
7 SEPTEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
By an interlocutory application filed on 29 August 2012, the respondent sought orders as follows:
1.Pursuant to section 37P of the Federal Court of Australia Act 1976 and rule 16.21(1) of the Federal Court Rules 2011:
(a) the applicant’s statement of claim dated 1 March 2012 be struck out;
(b)alternatively, paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 37, 41, 42, 43, 44, 45, 46 and 47 of the applicant’s statement of claim dated 1 March 2012 be struck out, and
the applicant be given leave to file and serve an amended statement of claim within 28 days.
2.Further, or alternatively to 1, pursuant to section 37P of the Federal Court of Australia Act 1976 and rule 16.45(1) of the Federal Court Rules 2011, the applicant provide supplementary further and better particulars of the statement of claim dated 1 March 2012 in response to the respondent's request for further and better particulars of [sic] statement of claim dated 30 April 2012.
3. The applicant pay the respondent’s costs of and incidental to this application.
4. Such other order or orders as the Court sees fit.
In support of its interlocutory application the respondent read two affidavits sworn by Mr Hope, one dated 29 August and the other 4 September 2012. On objection being made to paragraphs 25 to 47 of the former affidavit I admitted those paragraphs as submissions only.
A brief chronology of events is that the statement of claim was filed on 1 March 2012, the originating application having also been filed on that date; three large affidavits, said to comprise the substance of the applicant’s evidence, were also filed with the statement of claim; a defence was filed on 30 April 2012; a request for further and better particulars of the statement of claim was made on 30 April 2012 and that was responded to on 31 May 2012. A reply was filed on 13 June 2012.
I also note that on 4 May 2012 I directed, amongst other things, that the respondent give notice of its complaints about the statement of claim on or before 14 June 2012. That was done by letter dated 15 June 2012. That letter complained about the entirety of the statement of claim but also said the following:
5. Further deficiencies in the Statement of Claim
5.1In addition to NEC’s general criticism of the manner in which the Statement of Claim has been pleaded, NEC draws attention to the following deficiencies by way of example:
(g)Para 11 - The basis for the contractual duty pleaded in paragraph 11 is not evident. Is it alleged that the duty was a term of the contract or is it simply that a more general fiduciary duty arose by virtue of the contractual relationship between the parties?
(h)Para 12 - This paragraph is vague. It is unclear whether Hi-Tech alleges that it agreed to the variations to the Joint Venture Agreement sought by NEC. If so, the amended Joint Venture Agreement needs to be pleaded. If not, that paragraph appears to be irrelevant to any cause of action pleaded against NEC.
(i)Paragraph 18 - This paragraph is vague. It is unclear what features NEC requested of Hi-Tech and when those requests were made.
(j)Paragraph 28 - This paragraph is embarrassing as the matters pleaded in paragraph 27 (and which are alleged to be “features”) are cast in the negative and cannot be described as “features”.
(k)Paragraph 31 - The particulars to this paragraph are vague and circular in that they do no more than repeat the allegations set out in paragraph 31.
By letter dated 13 July 2012 on behalf of the applicant these complaints, both general and specific, were rejected.
The paragraphs the subject of the request for further and better particulars of the statement of claim were 4, 5, 6, 7, 9, 10, 11, 12, 13, 15, 16, 18, 19, 25, 26, 27, 28, 31, 41 and 45.
It may thus be seen that the paragraphs in paragraph 1(b) of the interlocutory application are more numerous than those specified in [3] and [5] above. It may also be seen that the paragraphs the subject of specific complaint in relation to the pleadings are all included in the request for particulars the subject of the interlocutory application.
I also note that one paragraph, paragraph 4, of which specific complaint was made in the respondent’s written submissions was not separately enumerated in the interlocutory application.
I directed that written submissions be filed by the parties in relation to the interlocutory application and those written submissions, dated 3 September 2012 and 4 September 2012 respectively, enable me to state my conclusions in summary form.
I approach these issues, as I am required to do, by reference to s 37M of the Federal Court of Australia Act 1976 (Cth) which provides:
37M The overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Court;
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court made under this Act;
(b)any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court.
These requirements were, perhaps, insufficiently appreciated in the submissions on behalf of the respondent.
In the events that have happened, particularly that the respondent has throughout reserved its position in relation to what it says are the inadequacies of the statement of claim, I do not proceed by reference to the mere fact that the pleadings have closed but I do take into account the terms of the pleadings, particularly the defence, in assessing what orders should be made on the respondent’s interlocutory application.
I decline to strike out the entirety of the statement of claim. In my opinion, subject to what follows in relation to the paragraphs specified in the interlocutory application and the request for particulars, the statement of claim is adequate for its purpose. In so saying, I should not be taken to be encouraging or endorsing the course taken by the applicant in this case which is to plead by reference to very large numbers of paragraphs of affidavits filed at the same time as the originating application and statement of claim.
I turn to consider the paragraphs the subject of the parties’ written submissions.
Paragraph 4
As noted above, this paragraph was not specifically listed in the interlocutory application however I proceed on the basis that it is included as the subject of paragraph 2 of the interlocutory application, the application for further and better particulars. In my view the pleading is sufficiently clear and the request for further and better particulars would tend to raise a false issue. I reject this part of the interlocutory application.
Paragraph 5
In light of the terms of the allegation in this paragraph and the respondent’s pleading to it in its defence I would not strike out this paragraph. I would however direct that the applicant provide by way of particulars the end point for the enquiries and indications referred to in this paragraph.
Paragraph 6
In light of the terms of the allegation in this paragraph and the respondent’s pleading to it in its defence I would not strike out this paragraph. I would however direct that the applicant provide the usual particulars of the alleged representation in each of paragraphs 6(a), 6(b) and 6(c) as requested in paragraphs 3(b), 4(b) and 5(b) of the respondent’s request for further and better particulars filed on 30 April 2012.
Paragraph 7
I reach the same conclusion in relation to this paragraph as for paragraph 6. Thus I direct that the applicant provide the usual particulars of the alleged representation in each of paragraphs 7(a) to 7(g) as requested in paragraphs 6(c) to 11(c) and 12(b) of the respondent’s request for further and better particulars filed on 30 April 2012.
I also direct that the applicant provide the particulars sought in paragraphs 13(a) and 13(g) of the respondent’s request for further and better particulars filed on 30 April 2012.
Paragraph 8
This paragraph was not the subject of a request for further and better particulars. Neither was it the subject of a specific complaint in the respondent’s letter of 15 June 2012. I decline to strike it out. Nevertheless I direct that the applicant explain to the respondent what it alleges constitutes the joint venture referred to in this paragraph. I also direct the applicant to give the usual particulars of the alleged representation or representations.
Paragraph 9
I decline to strike out this paragraph. Nevertheless I direct the applicant to provide the usual particulars and the usual details of the negotiations alleged in this paragraph as requested in paragraphs 14(a) and 14(b) of the respondent’s request for further and better particulars filed on 30 April 2012.
Paragraph 10
In my opinion the terms of the joint venture agreement are of key importance to the pleading. Although the applicant has made some attempts, in its response to the request for further and better particulars, to provide the necessary detail it would be preferable for paragraph 10 to be redrawn making clear what is said to be the significance, if any, of the allegation that some of the terms were concluded on 25 November 2008. The applicant should also make clear which of the terms are alleged to be written or oral in whole or in part and which terms are alleged to be implied. To provide by way of particulars, as has been done for example in relation to paragraph 10.a., that the term “was oral, or alternatively written or partly oral and partly written, and was express, or alternatively implied or partly express and partly implied” is, in my opinion, entirely inadequate. I therefore strike out paragraph 10 and direct that the applicant replead the paragraph. The repleaded paragraph should include, or be accompanied by, the usual particulars as sought in paragraph 15(c) of the respondent’s request for further and better particulars filed on 30 April 2012.
Paragraph 11
I would not strike out this paragraph. Nevertheless I direct that the applicant inform the respondent whether the joint venture referred to in this paragraph is the same as the joint venture defined in paragraph 8 of the statement of claim. In addition, the applicant should inform the respondent how it is that the representations alleged in paragraphs 6, 7 and 8 are said to give rise to the contractual duties pleaded in this paragraph. I also direct the applicant to give the usual particulars of the contractual duties alleged in subparagraphs 11.a. to h. as requested in paragraphs 16(a)-(h) of the respondent’s request for further and better particulars filed on 30 April 2012. If the applicant contends that each of the duties pleaded are imposed by law then any facts, matters and circumstances relied on for that conclusion should be specified.
Paragraph 12
I would not strike out this paragraph but it needs to be amended to make clear why it is said that this allegation is material and also to make clear what the applicant did in relation to the respondent’s attempts. Also I direct that the applicant give the usual particulars and the usual details of the respondent's alleged attempts to vary the terms of the joint venture agreement after 8 December 2008 as requested in paragraphs 17(a) and 17(b) of the respondent’s request for further and better particulars filed on 30 April 2012.
Paragraph 13
I would not strike out this paragraph. Nevertheless I do not regard the particulars that have been provided as adequate. I therefore direct the applicant to provide the usual particulars of the respondent’s representation or representations to the applicant that the joint venture would go ahead and of the respondent's encouragement to the applicant and of the respondent’s request or requests to the applicant as alleged, as requested in paragraphs 18(a)-(c) of the respondent's request for further and better particulars filed on 30 April 2012.
Paragraphs 14 and 16
These paragraphs are dealt with together in the respondent's written submissions. Nevertheless I note that there was no request for further and better particulars of the allegations in paragraph 14. I would not strike out either of these paragraphs. I do direct, however, that the applicant provide the usual particulars and the usual details of the respondent’s requests pleaded in paragraphs 16 in accordance with the requests in paragraphs 20(a)-(c) of the respondent's request for further and better particulars filed on 30 April 2012.
Paragraph 17
This paragraph was not the subject of a request for further and better particulars. I would not strike out the paragraph. Nevertheless I direct that the applicant provide the usual particulars of the request of the respondent; of the knowledge of the respondent; of the purposes referred to; the reliance; and the representations. In my view it is not adequate to refer by way of particulars to some hundreds of paragraphs of an affidavit.
Paragraph 18
I would not strike out this paragraph. I repeat, however, that it is not adequate to refer by way of particulars to some hundreds of paragraphs of an affidavit. I direct that the applicant respond in a substantive way to paragraphs 21(a)-(d) of the respondent’s request for further and better particulars filed on 30 April 2012. Further, if the allegation is said to be that the respondent intentionally delayed the release of the application to the market by making unnecessary requests for additional features, as implied in the applicant’s written submissions, then the paragraph must be amended to so allege with clarity.
Paragraph 19
I would not strike out this paragraph. Again I repeat that it is not adequate to refer by way of particulars to some hundreds of paragraphs of an affidavit. I direct that the applicant respond in a substantive way to paragraphs 22(a)-(d) of the respondent’s request for further and better particulars filed on 30 April 2012.
Paragraph 20
I note that this paragraph was not the subject of a request for further and better particulars. I would not strike out the paragraph. In my opinion the allegations are sufficiently clear and the particulars given refer to only one paragraph of an affidavit.
Paragraph 25
I would not strike out this paragraph. I reject the request as articulated for further and better particulars of this paragraph but I shall direct that the applicant amend the paragraph so as to make clear what is meant in the pleading by “Softswitch” or “softswitch” and the link between the iPhone VoIP client and the “Softswitch” or “softswitch”.
Paragraph 26
I would not strike out the paragraph. I do, however, direct the applicant to provide a substantive response to paragraphs 24(a) and (b) of the respondent’s request for further and better particulars filed on 30 April 2012.
Paragraph 27
The complaint made about this paragraph, is that the materiality of the allegations is not apparent. Little by way of submission was addressed to this paragraph. It is not sufficiently clear to me at this stage that the facts alleged are collateral. I would not strike out this paragraph.
Paragraph 28
In my opinion, although this paragraph is not pleaded with any elegance its meaning is sufficiently clear. Also I note the terms of the pleading to this paragraph in the defence. To the extent that it is alleged that the materiality of the allegations is not apparent, it is not sufficiently clear to me at this stage that the facts alleged are collateral. I would not strike out this paragraph. I do direct however that the applicant provide a substantive response to paragraphs 26(b) and (c) of the respondent’s request for further and better particulars filed on 30 April 2012. In my opinion the particulars provided by reference to a listing of approximately 20 emails is not an adequate response to the request.
Paragraph 30
This paragraph was not the subject of a request for further and better particulars. Nevertheless, the applicant should inform the respondent what are the specific matters referred to in paragraphs 5 to 29 which are said to constitute a breach of contract. The applicant must also amend paragraph 30 to remove the apparent inconsistency between that paragraph and paragraphs 12 and 13, being paragraphs referred to in paragraph 30.
Paragraph 31
I would not strike out this paragraph but the applicant must amend it to specify the source of each obligation pleaded. Also, the applicant’s response to the respondent's request for particulars in relation to this paragraph is inadequate and I direct that the applicant provide a substantive response to paragraphs 27 and 28 of the respondent's request for further and better particulars filed on 30 April 2012.
Paragraph 32
This paragraph was not the subject of a request for further and better particulars. I would not strike out the paragraph. The only source of possible confusion is the apparent error in the reference to paragraphs 22 to 23. It seems reasonably clear that the paragraphs intended to be referred to were 30 and 31 but the applicant should amend the paragraph to make clear to which paragraphs paragraph 32 refers.
Paragraph 33
This paragraph was not the subject of a request for further and better particulars. I would not strike out the paragraph but I accept that it is unclear how it is alleged that, globally, the matters in paragraphs 5-29 inclusive have led to the results pleaded in paragraph 33. The applicant should amend the paragraph to make clear with specificity which of the matters in paragraphs 5 to 29 is alleged to have led to the result in paragraph 33.
Paragraph 34
This paragraph was not the subject of a request for further and better particulars. I would not strike out the paragraph. I do however direct the applicant to provide to the respondent the basis upon which it is alleged that the respondent was a fiduciary and was under the obligations set out in paragraph 11.a.-11.h.
Paragraph 35
This paragraph was not the subject of a request for further and better particulars. As with paragraph 33 above, I would not strike out the paragraph but I accept that it is unclear how it is alleged that, globally, the matters in paragraphs 5-29 inclusive have led to the results pleaded in paragraph 35. The applicant should amend the paragraph to make clear with specificity which of the matters in paragraphs 5 to 29 is alleged to have led to the result in paragraph 35. The applicant should also unpack the allegations in this paragraph to separate from each other the existence of the fiduciary relationship alleged and the breach of the obligations thereby alleged to arise.
Paragraph 37
This paragraph was not the subject of a request for further and better particulars. It is not pleaded with elegance but in my view the paragraph is sufficiently clear. I would not strike out the paragraph.
Paragraph 41
I would not strike out this paragraph. I direct however that the applicant provide a substantive response to the respondent’s request for particulars of this paragraph in paragraphs 29-33 of the respondent’s request for further and better particulars filed on 30 April 2012. This will include the date on which the applicant is alleged to have completed the adaptation to its iPhone VoIP client so that it could interface with the respondent's SIP enabled PABX telephone systems.
Paragraph 42
This paragraph was not the subject of a request for further and better particulars. I would not strike out the paragraph but I direct the applicant to identify to the respondent the misrepresentations referred to in this paragraph. I also direct the applicant to specify the facts, matters and circumstances relied on for the allegation that the respondent did not have reasonable grounds for making the representations.
Paragraph 43
This paragraph was not the subject of a request for further and better particulars. I would not strike out the paragraph: the applicant has incorporated by reference in relation to its promissory estoppel claim facts alleged in earlier specified paragraphs. I have already made orders in relation to paragraphs 6, 7 and 8 referred to in this paragraph.
Paragraphs 44 and 45
These paragraphs are dealt with together in the respondent’s written submissions. The respondent accepted that the outcome of its objections to paragraphs 6, 7 and 8, 14-17 and 41 referred to in paragraphs 44 and 45 will determine the outcome of its objections to these paragraphs 44 and 45. No separate order is necessary. I do not strike out these paragraphs. Although paragraph 45 was subject to a request for further and better particulars no complaint is made about the particulars provided by the applicant in this respect.
Paragraph 46
I would not strike out this paragraph. It was not the subject of a request for further and better particulars but the respondent in its written submissions seeks clarification as to whether the applicant intended by this paragraph to allege that the respondent was also estopped from departing from the promises and representations pleaded in paragraph 6 of the statement of claim. I direct the applicant to notify the respondent whether that allegation is or is not made.
Paragraph 47
The respondent says that this paragraph is unintelligible. I would not strike out this paragraph. In my view it is sufficiently intelligible as a broad pleading of causation.
Orders
The orders I make are as follows:
1.Paragraph 10 of the applicant’s statement of claim filed on 1 March 2012 be struck out.
2.By 28 September 2012, the applicant:
(i)re-plead paragraph 10 and provide the usual particulars as sought in paragraph 15(c) of the respondent's request for further and better particulars filed on 30 April 2012;
(ii)amend paragraphs 12, 18, 25, 30, 31, 32, 33 and 35;
(iii)provide further and better answers to the requests in the following paragraphs of the respondent's request for further and better particulars filed on 30 April 2012: 3(b), 4(b), 5(b), 6(c) to 11(c), 12(b), 13(a), 13(g), 14(a), 14(b), 16(a)-(h), 17(a), 17(b), 18(a)-(c), 20(a)-(c), 21(a)-(d), 22(a)-(d), 24(a), 24(b), 26(b), 26(c), 27, 28 and 29-33;
(iv)provide by way of particulars to paragraph 5 the end point for the enquiries and indications referred to in that paragraph;
(v)provide by way of particulars to paragraph 8:
(a) an explanation of what it is alleged constitutes the joint venture referred to in that paragraph;
(b) the usual particulars, as defined in the respondent’s request for further and better particulars filed on 30 April 2012, of the alleged representation or representations;
(vi)by way of particulars to paragraph 11 inform the respondent:
(a)whether the joint venture referred to in this paragraph is the same as the joint venture defined in paragraph 8 of the statement of claim;
(b)how it is said that the representations alleged in paragraphs 6, 7 and 8 give rise to the contractual duties pleaded in this paragraph;
(c)if the applicant contends that each of the duties pleaded are imposed by law then any facts matters and circumstances relied on for that conclusion should be specified;
(vii)give the respondent by way of particulars to paragraph 17 the usual particulars as defined in the respondent’s request for further and better particulars filed on 30 April 2012 of:
(a)the request of the respondent;
(b)the knowledge of the respondent;
(c)the purposes referred to;
(d)the reliance; and
(e)the representations;
(viii)inform the respondent by way of particulars to paragraph 30 as to the specific matters referred to in paragraphs 5 to 29 which are alleged to constitute a breach of contract;
(ix)in relation to paragraph 34, provide to the respondent the basis upon which it is alleged that:
(a)the respondent was a fiduciary; and
(b)was under the obligations set out in paragraph 11.a-11.h.;
(x)in relation to paragraph 42:
(a) identify to the respondent the misrepresentations referred to;
(b)specify the facts, matters and circumstances relied on for the allegation that the respondent did not have reasonable grounds for making the representations;
(xi)inform the respondent by way of particulars to paragraph 46 whether it is alleged that the respondent was also estopped from departing from the promises and representations pleaded in paragraph 6 of the statement of claim.
3.The respondent’s interlocutory application filed on 29 August 2012 be otherwise dismissed.
4.By 26 October 2012, the respondent file and serve its defence to the statement of claim as amended.
5.By 30 November 2012, the respondent file and serve the affidavit evidence on which it intends to rely at trial. In the case of disputed conversations the respondent should file and serve proofs of the evidence proposed to be adduced at trial.
6.Each party bear its own costs of the interlocutory application filed on 29 August 2012.
7.The matter be listed for directions at 9.30am on 5 December 2012.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 7 September 2012
0
0
0