Jerambak Holdings Pty Ltd (Formerly Glencoe Pty Ltd) and ors v Blunt and ors [2003]

[2003] NTSC 1

Jerambak Holdings Pty Ltd (Formerly Glencoe Pty Ltd) & ors v

Blunt & ors [2003] NTSC 1

PARTIES:JERAMBAK HOLDINGS PTY LTD (FORMERLY GLENCOE PTY LTD)

AND

THE BRUNEI MEAT EXPORT COMPANY

AND

THE BARKLY MEAT PROCESSING COMPANY PTY LTD

v

BLUNT, PETER

AND

McNICOL, STEVEN CRAIG

AND

SKARTVEDT, MARLA PAULINE

AND

McNICOL, SALLY ANITA

AND

AUSTRAL-ASEAN PTY LTD

AND

BLUNT & ASSOCIATES PTY LTD

AND

POLYDOROS PTY LTD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:72 of 2000, 20008942

DELIVERED:  8 January 2003

HEARING DATES:  28, 29 October 2002

JUDGMENT OF:  RILEY J

REPRESENTATION:

Counsel:

Plaintiffs:C. Maxwell; P. Sest

1^st, 3^rd & 6^th Defendants:             R. Carruthers

2^nd, 4^th, 5^th & 7^th Defendants:       L. Silvester

Solicitors:

Plaintiffs:Ward Keller

1^st, 3^rd & 6^th Defendants:             Hunt & Hunt

2^nd, 4^th, 5^th & 7^th Defendants:       Hunt & Hunt

Judgment category classification:    C

Judgment ID Number:  ril0302

Number of pages:  6

ril0302

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Jerambak Holdings Pty Ltd (Formerly Glencoe Pty Ltd) & ors v

Blunt & ors [2003] NTSC 1
No. 72 of 2002, 20008942

BETWEEN:

JERAMBAK HOLDINGS PTY LTD (FORMERLY GLENCOE PTY LTD)

AND

THE BRUNEI MEAT EXPORT COMPANY

AND

THE BARKLY MEAT PROCESSING COMPANY PTY LTD

Plaintiffs

AND:

PETER BLUNT

AND

STEVEN CRAIG McNICOL

AND

MARLA PAULINE SKARTVEDT

AND

SALLY ANITA McNICOL

AND

AUSTRAL-ASEAN PTY LTD

AND

BLUNT & ASSOCIATES PTY LTD

AND

POLYDOROS PTY LTD

Defendants

CORAM:    RILEY J

REASONS FOR JUDGMENT

(Delivered 8 January 2003)

1. On 28 and 29 October 2002 the defendants in these proceedings applied for various orders relating to the amended statement of claim.  It was the submission of all defendants that the pleading did not disclose sustainable causes of action against any of the defendants and that, in all the circumstances, the proceedings ought be stayed generally, that the amended statement of claim ought be struck out, or that there should be judgment for the defendants against the plaintiffs.  Each summons concluded, as is common, with an application for “[s]uch further or other orders as the Court thinks fit”.

2. The amended statement of claim is the third such document produced on behalf of the plaintiffs over the period from May 2000 to the present.  During that period the defendants have written to the plaintiffs’ advisers identifying what they claimed were defects in the pleading.  The plaintiffs advisers revisited the pleading and the document that was before the court on the October hearing dates was the product of the revision that resulted. 

3. Debate regarding the efficacy of the amended statement of claim took place over two hearing days.  At the conclusion of the argument I made directions that each summons issued on behalf of the defendants be adjourned on the basis that the plaintiffs be given the opportunity to present an amended statement of claim on or before 20 December 2002.  The making of that direction followed upon the conclusion I had reached that whatever might be the merits of the application made by the defendants and whatever may be the merits of the response on behalf of the plaintiffs it was desirable, if not necessary, that the statement of claim be amended.  That view was expressed to the parties and in light thereof the plaintiffs, without accepting that the amendment was necessary, and the defendants without conceding that the applications made should fail, agreed that I should allow the plaintiffs a further opportunity to plead their claims.  I therefore made the orders and provided some further directions.

4. The issue that remained was as to who (if anyone) should bear the costs of the hearing on 28 and 29 October 2002.  I have had the benefit of both oral and written submissions on this issue.  It was the submission of the plaintiffs that the costs of the applications should be borne by the defendants and should be payable on an indemnity basis.  The thrust of the submissions centred upon the contention that the issues raised by the defendants, properly understood, were directed to the need for further or better particulars of the claim.  It was submitted that the applications were misconceived and doomed to fail because they sought to attack and set aside or stay the pleading rather than seek further and better particulars or the striking out of the particulars that had been provided.  The submission was made that the defendants, properly advised, would not have made the applications that were made because they were doomed to fail.  It was said that the plaintiffs had alerted the defendants to the problems with their applications as formulated and yet they persisted. The submission of Mr Maxwell, who appeared on behalf of the plaintiffs, was in the following terms:

   “They are matters which it is appropriate to attend to for clarification, but they are marginal matters and if your Honour is with us, that we have correctly categorised the other complaints as being either defences on the merits or matters of evidence or questions of particulars, then your Honour would be satisfied that this was a misconceived application which should never have been brought in this form which was always doomed to fail in this form on this pleading and in respect of which the defendants should not only pay the costs, but should pay them on an indemnity basis”.

5. Further, the plaintiffs complained that the grounds upon which the amended statement of claim was to be attacked were not identified until shortly before the hearing commenced.  Mr Maxwell did not receive the written submissions of the defendants until the morning of the hearing.  Those written submissions of the defendants were detailed and contained a wide range of submissions regarding alleged defects in the amended statement of claim.

6. There is some force in the submission made by Mr Maxwell.  The problems with the statement of claim were bound up in the particulars.  Although the amended statement of claim required some further amendment in order to clarify parts of it, the complaints of the defendants centred upon confusion arising out of the particulars that were incorporated into the statement of claim.  In that regard there were many complaints made by the defendants.  The principal complaints focused upon the pleading of the representations said to have been made by the first defendant Professor Blunt, the second defendant Mr McNicol and/or the fifth defendant Austral-Asean.  The pleading of the representations is first found in par 10 of the amended statement of claim and those representations are then relied upon throughout the statement of claim as underlying many of the matters pleaded.  The pleading of the representations is in an unfortunate form and leads to confusion.  Although the key elements of each cause of action had been pleaded and were able to be met with a responsive pleading, the particulars served to confuse matters.  The relevant defendants were all lumped together and particulars provided as if all of those particulars related to all of the representations of all of the identified defendants, when they clearly could not and did not. 

7. Although the applications made on behalf of the defendants arguably would more appropriately have been directed to a challenge to the particulars appearing in the statement of claim, it is clear to me that even if that had occurred we would still have had the arguments that took place. Those arguments would have covered much the same ground and taken much the same time.  However the focus would have been upon a failure to provide proper particulars rather than whether the pleadings should have been struck out or the proceedings stayed.  In concluding that a similar debate would have proceeded in any event I do not accept the submission made by Mr Maxwell that a telephone call would have led to the plaintiffs altering their position. 

8. Many of the suggested defects in the pleading had been drawn to the attention of the plaintiffs and they had attended to some matters but declined to address others.  The correspondence makes it clear that the plaintiffs regarded the further matters as being adequately pleaded. There was no acknowledgement that the particulars needed attention when the hearing before me commenced and, subject to some concessions, that position was maintained, throughout the hearing.  In my view it was necessary for there to be an airing of the issues before both sides of the argument could or did recognise the weaknesses in their positions.

9. There is merit in the submissions made by both sides of the argument. The complaints of the defendants were of a kind that largely called for a consideration of the adequacy of the particulars and not the pleading of the causes of action. The plaintiffs had to be brought to court to acknowledge the problems that the particulars created. The Supreme Court Rules provide that each party shall bear the costs of an interlocutory application unless the court otherwise orders. I see no reason to depart from that approach in this case. I have considered the various formulations of costs orders proposed by the parties, however, it seems to me that this is a case in which all parties should bear their own costs.

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