Inghams Enterprises Pty Ltd v Snowdale Holdings Pty Ltd - [2013] WADC 107

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: INGHAMS ENTERPRISES PTY LTD -v- SNOWDALE HOLDINGS PTY LTD [2013] WADC 107

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 27 JUNE 2013

DELIVERED : 5 JULY 2013

FILE NO/S: CIV 316 of 2013

BETWEEN: INGHAMS ENTERPRISES PTY LTD
Plaintiff
AND
SNOWDALE HOLDINGS PTY LTD
First Defendant
BARRY JAMES COCKING
Second Defendant
CHIMENE ELIZABETH COCKING
Third Defendant

Catchwords:

Practice and procedure - Application to strike out portions of amended statement of claim - Misleading and deceptive conduct - Turns on its own facts

Legislation:

Nil

Result:

Portion of statement of claim struck out

Representation:

Counsel:

Plaintiff:     Mr J Park
First Defendant              :     Mr P B Dobson
Second Defendant         :     Mr P B Dobson
Third Defendant            :     Mr P B Dobson

Solicitors:

Plaintiff:     Park Linfoot Legal Solutions
First Defendant              :     Hotchkin Hanly Lawyers
Second Defendant         :     Hotchkin Hanly Lawyers
Third Defendant            :     Hotchkin Hanly Lawyers

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

Nil

DEPUTY REGISTRAR HEWITT: This action was commenced by a writ of summons filed on 21 January 2013. The writ was endorsed with a statement of claim and that was subsequently amended by an amended statement of claim filed 15 April 2013.
The original action as pleaded was essentially a claim for goods sold and delivered, together with a claim against guarantors in respect of their guarantee of due and punctual payment by the purchaser. The amendments introduced claims based on alleged breaches of the Fair Trading Act, the Trade Practices Act and the Australian Consumer Law. Those paragraphs occupied some 21 new paragraphs which were included in the statement of claim.
The defendant by chamber summons filed on 2 May 2013 has applied to strike out the introduced claims to which I have referred, together with a number of other paragraphs which form part of the original statement of claim.
I shall first deal with the misleading and deceptive conduct claims introduced by amendment.
The plaintiff is a supplier of poultry and poultry feed products and the first defendant a purchaser of those products. The parties entered two agreements; one in respect of the purchase of poultry, and another in respect of the purchase of feed. Each of those agreements was guaranteed by the second and third defendant. In essence, the first defendant applied for credit in respect of its purchases of poultry by credit application dated 23 March 2009 and supported by guarantees executed by the second and third defendant, required by the plaintiff, which were dated 29 March 2009. It is pleaded in par 8 of the amended statement of claim that on 30 April 2009, the plaintiff in reliance on each of the guarantees and the first credit application, accepted that application. It is later pleaded that pursuant to that application there were dealings between the parties for approximately the next two years, during which transactions to the total value of some $3 million were satisfactorily completed. The second matter is very similar to the first, save that the dates are different but the process is identical. The misleading and deceptive conducts claims commence at par 47 of the amended statement of claim and comprise allegations of some six representations; two by the first defendant and two by each of the guarantors. In essence, the representation is said to be that the first defendant would pay all amounts due and payable under the contracts it had entered with the plaintiff. All the misleading and deceptive conduct claims follow the same lines, and I will therefore concentrate my analysis on one of the claims against the first defendant appearing in par 47(a) of the amended pleading and one of the pleadings against one of the guarantors appearing at par 48(a). Insofar as there is a pleading of misleading and deceptive conduct against the first defendant in par 47(a), it relies on pars 4, 8, 14 and 17, by virtue of which it is said that a representation of the nature claimed was made.
Paragraph 4 refers to the first defendant making an application for credit.
Paragraph 8 refers to the fact that the plaintiff in reliance on the guarantees and the first credit application accepted the application. Paragraph 14 pleads the terms upon which credit was advanced.
Paragraph 17 pleads that the first defendant accepted the plaintiff's supply of certain day old high sex layer birds to the value of $192,000. The delivery of those birds was in May and July 2011. In essence therefore the misleading and deceptive conduct is said to have been to apply for credit, to receive credit, and approximately two years later to have accepted delivery of certain birds.
In order to found a claim for misleading and deceptive conduct, it is necessary to plead particulars of reliance on that representation. In the present case par 60 contains the relevant pleading. Paragraph 60 reads:
In reliance on the first representation the plaintiff supplied to the first defendant the day old high sex layer birds under the first contract itemised in the tax invoices pleaded at above paragraph 18.
On analysis it is therefore pleaded that the representation comprised the application for credit, the granting for credit, and the acceptance of the birds delivered. The reliance is the supply of the birds which necessarily predated their acceptance by the first defendant. Any analysis of this pleading indicates that it is unsustainable. The representation upon which the plaintiff is said to have relied included the acceptance of the birds. It is therefore a nonsense to plead that the supply of the birds was in reliance of the representation, since as pleaded the representation could not be complete until the birds were accepted.
The next portion of the pleading which I shall analyse is that contained in par 48(a). The claim against the second defendant under the terms of its guarantee. In that case the representations said to found the misleading and deceptive conduct claim are contained in pars 6, 24 and 26.
Paragraph 6 pleads that on 25 March, the second defendant guaranteed the first defendant's performance of its obligations under the first credit application.
Paragraph 24 pleads that at all material times the second defendant was a director of the first defendant and guaranteed the first defendant's performance of its obligations under the first contract and par 26 pleads that the second defendant is jointly and severally liable with the third defendant for the first defendant's performance of its obligations under the first contract.
The misleading and deceptive conduct therefore would appear to be firstly that the second defendant guaranteed the obligations of the first defendant, secondly a repetition of that allegation together with an additional, and irrelevant allegation that the second defendant was a director of the first defendant, and thirdly an allegation of a proposition of law namely that the second defendant is jointly and severally liable with the third defendant. How that could possibly amount to misleading and deceptive conduct escapes me. Clearly it also escapes the defendant. I will not concern myself with analysing the remaining four alleged misleading and deceptive conduct claims since they are all broadly similar to those which I have already outlined and all are flawed in the same or similar ways. My conclusion is therefore that the misleading and deceptive conduct claims which were introduced in the amended statement of claim filed 15 April 2013 should be disallowed in total as failing to articulate a reasonable cause of action against the defendants. There are however additional attacks on the various of the paragraphs in the statement of claim, and those are firstly pars 15 and 20 of the pleading. Paragraph 15 pleads that between May 2009 and May 2011, the plaintiff in reliance on the first contract and the second contract and the first and second guarantee, supplied to the first defendant products particularised to a total value of $3,042,821.62. There was no argument that those products have been fully paid for. The pleading is completely irrelevant in the context of the claim which is pursued. Likewise there is a pleading in par 20(a) that between May 2009 and May 2011, the defendant paid all monies owed to the plaintiff from time to time in relation to the supply of products to it. Again, that is completely irrelevant to the cause of action which is pursued and par 15 and 20(a) shall be struck out on that basis.
The next challenge is in relation to par 23. That alleges an admission from the second defendant. The terms upon which the admission is said to have been couched are as follows:
On 27 July 2011 the second defendant admitted the debt to the plaintiff by sending an email to Joe Wegrzyn, the plaintiff's national sales manager (layers), stating among other things that he did not wish to increase my debt with Inghams.
In my view those words are incapable of conveying the meaning attributed by the plaintiff, namely to be an admission of 'the debt'. At their highest, the words might carry some implication that there was some level of debt for which the second defendant was liable, but the words are incapable of sustaining the inference which is argued for by the plaintiff in its pleading and in my view give no reasonable cause of action on an acknowledgement of debt. At the best, the paragraph is a pleading of evidence, at the worst, it is meaningless. That paragraph likewise will be struck out.
It is argued by the plaintiff that the application which is before me is out of time, Registrar Kingsley, having on 22 March 2013 given 10 days after the service of an amended statement of claim within which to bring an application such as this. That amendment was filed on 15 April and the present application brought on 2 May. When the statement of claim is served is not a matter which is apparent on the materials before me, but I think it likely that the present application was a day or so out of time. In the circumstances, if in fact it is necessary to extend time, I think it proper to do so and therefore I shall make a formal order extending the time within which the application might be brought to the day upon which it was filed, namely 2 May.
As a final point, I am concerned that the statement of claim in this matter which should be, in my opinion, a straight forward claim for goods sold and delivered and upon the guarantees executed by the second and third defendants has been pleaded in what seems to be an extremely convoluted way. Additionally there appear to be within the statement of claim some glaring omissions. Normally in an action for goods sold and delivered, one has a request from the purchaser, an agreement as to the price and delivery. In this statement of claim, I can perceive no request for delivery of the relevant products, nor can I see any agreement as to the price of those products or any other basis upon which the plaintiff has calculated the amounts due on the invoices rendered. Additionally, I see absolutely no sensible basis to introduce a misleading and deceptive conduct claim, which in my opinion will simply complicate, unnecessarily, the conduct of the action without adding anything to the plaintiff's prospects of success or prospects of a higher award of damages.
My decision is therefore that the whole of the amendments which were introduced by the amended statement of claim filed 15 April 2013 should be struck out, together with the other paragraphs which I have identified in these reasons for decision.