Hydedale Pty Ltd v Robert Luxmore Pty Ltd
[2002] VSC 226
•12 June 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 5765 of 2001
| HYDEDALE PTY. LTD. AND ANOTHER | Plaintiffs |
| v. | |
| ROBERT LUXMORE PTY. LTD. AND OTHERS | Defendants |
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JUDGE: | BEACH J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 JUNE 2002 | |
DATE OF JUDGMENT: | 12 JUNE 2002 | |
CASE MAY BE CITED AS: | HYDEDALE PTY. LTD. & ANOR. v. ROBERT LUXMORE PTY. LTD. & ORS. | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 226 | |
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CATCHWORDS: Pleadings – Allegation certain claims statute barred – Application to strike out – Application premature – Uncertainty as to date plaintiffs' cause of actions arose.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr. P. Bick QC and Mr. A. Sandbach | Peter Lustig |
| For the Defendants | Mr. G.D. Bloch | Goldhirsch Shnider |
HIS HONOUR:
This is an appeal from an order made by Master Wheeler on 23 May 2002 whereby the Master ordered that some 46 sub-paragraphs of paragraph 2 of the plaintiffs' statement of claim be struck out.
The plaintiffs allege that in or about 1991 the first and/or second plaintiffs entered into an agreement with the first and/or second, third and fourth defendants to source, evaluate and, if appropriate, develop a number of projects. In their statement of claim the plaintiffs allege (inter alia) that it was a term of the agreement:
(a)that if any of the projects proceeded the first and/or second plaintiffs would be entitled to 35% of any profit made in respect of that project except that in the case of a project called "Malvern Mews" it would be 50%;
(b)that at the conclusion of each project the first and/or second, third and fourth defendants would render to the first and/or second plaintiffs a true, full and accurate account of any profit derived from each project and thereupon pay the 35% to the first and/or second plaintiffs except that in respect of Malvern Mews the percentage would be 50%.
Paragraph 2 of the statement of claim alleges that the plaintiffs sourced, evaluated and performed work in respect of some 52 separate projects each identified in the statement of claim by a separate sub-paragraph to paragraph 2.
The Master struck out 37 of those sub-paragraphs on the ground that it was clear from the material before him that the projects had not proceeded. He struck out a further nine sub-paragraphs on the ground that it was clear that they were statute barred.
The Master gave reasons for his decision including reasons in writing. Those written reasons make no reference to the Statute of Limitations or the fact that nine of the sub-paragraphs in question were statute barred.
However, I was informed by counsel for the defendant who appeared before the Master that the Master gave oral reasons far more extensive than the written reasons on the Court file and that for some inexplicable reason such reasons were not transcribed. Senior counsel for the plaintiffs who did not appear before the Master did not challenge that assertion and indeed his written submissions handed to me confirm what counsel for the defendants had told me.
The sub-paragraphs of paragraph 2 the Master did not strike out on the round that they had not proceeded, were sub-paragraphs (f), (g), (ff) and (kk). The plaintiffs contend that it is also clear from the pleadings that the projects listed in sub-paragraphs (a), (b), (i), (p), (u), (x), (y), (bb), (ii), (oo), (qq), (rr), (ss) and (yy) proceeded.
In paragraph 5.1 of the defendants' defence the defendants have admitted that the projects described in sub-paragraphs (p), (s), (u), (x), (y), (bb), (ii), (oo), (qq), (rr), (ss), (ww), (xx), (yy) and (zz) proceeded and concluded. That is also clear from the defendants' Further and Better Particulars of their Defence and Counterclaim.
Sub-paragraphs (a) and (b) relate to an evaluation of several sites as potentially suitable for Air International and the evaluation of the University of Dayton's (Ohio, USA) Phase-Charge Technology for potential commercial exploitation.
It is contended by the plaintiffs that they have valid claims in respect of those evaluations. That may well be so.
However, was it open to the Master to take the view that the claims in respect of the projects the subject of sub-paragraphs (a), (b), (i), (p), (u), (x), (y), (bb), (ii), (oo), (qq), (rr), (ss) and (yy) or some of them were statute barred.
By paragraphs 3 and 4 of their Further and Better Particulars the defendants have contended that all of those projects the subject of this appeal were statute barred as they all relate to a period being more than six years before the issue of the proceeding.
Senior counsel for the plaintiffs contend that that is not necessarily so.
The repudiation of the agreement between the parties occurred on 15 May 1995. The plaintiffs' cause of action is for damages by reason of the repudiation, alternatively for sums due in consequence of matters occurring before the termination of the agreement but not paid prior to or after termination of the agreement. Their writ was filed in the Court on 11 May 2001, that is, within six years of that date.
He contends that the determination of when these causes of action arose is a complex factual matter that depends in part on when the plaintiffs' entitlement to accounting in respect of completed projects arose. He maintains that as things stand there is insufficient evidence for the Court to deal with the matter and that they should be left to the trial of the proceeding.
In that regard he points to the decision of the High Court in Wardley Australia Limited v The State of Western Australia[1] in particular the passage in the joint judgment of Mason CJ, Dawson, Gaudron and McHugh JJ at p.533 which reads:
"We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question. Magman International illustrates the problems which can arise, particularly in a case involving foreign loans."
[1](1992) 175 CLR 514
I have given consideration to this aspect of the matter in the light of the views expressed by the Court in Wardley. The opinion I have come to is that it is undesirable to determine the limitation question at this early stage of the proceeding. I consider that as in Wardley, insufficient is known of the damage alleged to have been suffered by the plaintiffs and when that damage first arose.
Accordingly the appeal will be allowed and paragraph 1 of the Master's order set aside.
In substitution therefore I order that the following sub-paragraphs of paragraph 2 of the statement of claim be struck out:
(c), (d), (e), (h), (j), (k), (l), (m), (n), (o), (q), (r), (s) (t), (v), (w), (z), (aa), (cc), (dd), (ee), (gg), (hh), (jj), (ll), (mm), (nn), (pp), (tt), (uu), (vv) and (ww).
I do not disturb the orders made by the Master in paragraphs 2, 3 and 4 of his order.
I order that the plaintiffs pay the defendants' costs of the appeal.
I grant to the plaintiffs a certificate under the Appeal Costs Act in respect of their costs of the appeal and the costs they are required to pay to the defendants.
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