JP Communications Pty Ltd v Agopian

[1999] WASC 266

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   JP COMMUNICATIONS PTY LTD -v- AGOPIAN & ANOR [1999] WASC 266

CORAM:   MASTER SANDERSON

HEARD:   9 DECEMBER 1999

DELIVERED          :   16 DECEMBER 1999

FILE NO/S:   CIV 1555 of 1999

BETWEEN:   JP COMMUNICATIONS PTY LTD (ACN 063 868 655)

Plaintiff

AND

ROGER AGOPIAN
First Defendant

PHONE WAREHOUSE PTY LTD (ACN 069 200 022)
Second Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim - Application for summary judgment - Turns on its own facts

Legislation:

Rules of the Supreme Court 1971, O 14 r 1(1)

Result:

Statement of claim struck out

Representation:

Counsel:

Plaintiff:     Mr C H Edwards

First Defendant             :     Mr T Darbyshire

Second Defendant         :     Mr T Darbyshire

Solicitors:

Plaintiff:     A C Thorpe

First Defendant             :     Kott Gunning

Second Defendant         :     Kott Gunning

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

Evans v Bartlam [1937] AC 473

Legione v Hately (1983) 46 ALR 1

North Eastern Railway Co v Martin (1848) 2 P Ph 758

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Westpac Banking Corporation v Thorpe, unreported; SCt of WA (Master Sanderson); Library No 970465; 18 September 1997

Case(s) also cited:

Dalgety Australia Ltd v Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984

Evans Deakin & Co Pty Ltd v Kaiser Engineers & Constructors Inc [1968] Qd R 379

Fancourt v Mercantile Credit Ltd (1983) 154 CLR 87

Smith v Town & Country Bank, unreported; FCt SCt of WA; Library No 970716; 18 December 1997

Sydney Holding Pty Ltd v New Holders Pty Ltd [1938] VLR 217

1. MASTER SANDERSON: This is the return of two chamber summonses. The first in time was the plaintiff's application for summary judgment. As the application was brought more than 21 days after the entry of an appearance by the defendants the plaintiff requires leave to bring this application pursuant to O 14 r 1(1). By summons dated 12 October 1999 the defendants sought to strike out certain paragraphs of the plaintiff's statement of claim. For its part, the plaintiff submitted, even if parts of the statement of claim were struck out they were still entitled to judgment on what remained.

2. By chamber summons dated 6 December 1999 the defendants sought leave to rely on an affidavit of Johanna Martina Agopian sworn 6 December 1999 in opposition to the application.  This chamber summons came on before Acting Master Chapman on 8 December 1999.  The learned Acting Master granted leave to the defendants to rely on the affidavit specifically reserving to the plaintiff the right to apply to adjourn the application if its position was prejudiced.  On the morning of the hearing, counsel for the plaintiff tendered an affidavit of Alex Palatinus sworn 8 December 1999 in answer to the affidavit filed by the defendants.  That affidavit was received into evidence.  The plaintiff did not apply to adjourn the special appointment and the matter proceeded.  The decision of the plaintiff to proceed and not to apply to adjourn the application was, in the circumstances, appropriate and is to be commended.

3. I will deal first with the application to strike out the amended statement of claim.  The first three paragraphs identify the parties.  Paragraphs 4 and 5 plead, in the alternative, that until 31 December 1998 the plaintiff and the first defendant were in partnership under the business name Mobile Connection or, alternatively, traded as a joint venture.  As a consequence it is said by par 6 that the parties "by their joint efforts" accumulated a Telstra Database from which income was generated.  Paragraph 7 pleads the parties agreed they would participate equally in the income generated from this database.  By par 8 it is pleaded that this was done for five years up until 30 November 1998.

4. Paragraphs 9, 10, 11 and 12 deal with what appear to be discussions which took place between the parties with a view to bringing their business relationship to an end.  Paragraph 12 refers to an offer made to settle the dispute between the parties and is clearly evidence.  It could not stand in any circumstances.  Paragraph 13 pleads that "thereafter" (presumably after 30 November 1998) no further payment was made to the plaintiff by the defendant in relation to the Telstra Database.  By par 14 it is pleaded that in December 1998 the first defendant transferred "the business" which is defined in par 6 to be either the partnership or the joint venture to the second defendant.  Paragraph 15 is in the following terms:

   "15.The plaintiff was and is entitled to 50% of earnings on ongoings generated from the Telstra Database for the period from 1 December 1998 and following until all contracts under the Telstra Database have come to an end."

5. By par 16 it is pleaded that by reason of the matters pleaded in par 11 through to par 14 an estoppel arises and the defendant is obliged to purchase the plaintiff's interest in the Telstra Database.  By its prayer for relief the plaintiff seeks an account in relation to the Telstra Database from 30 November 1998 and payment of 50 per cent of the "ongoings" from that date into the future.  It is to be noted that no claim is made for an order compelling the first defendant or the second defendant to purchase the plaintiff's interest in the business.

6. It is immediately apparent that par 9 through to par 12 of the statement of claim cannot stand.  If they attempt to raise an estoppel, then certain central elements of the cause of action have been omitted.  A representation on which an estoppel is based must be unequivocal in nature and reasonably relied on by the promisor:  see Evans v Bartlam [1937] AC 473; Legione v Hately (1983) 46 ALR 1. All that is pleaded in the amended statement of claim is that the first defendant advised the plaintiff that he would make "a reasonable offer" to purchase the plaintiff's interest (par 10). The plea is too vague. There is no plea that the plaintiff has altered its position consequent upon the representation. There is no plea that, as a consequence of the representation and reliance upon it by the plaintiff, the plaintiff will now suffer loss. In short, the plea in relation to estoppel falls so far short that it is embarrassing and should be struck out: see Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.

7. There are other difficulties with this statement of claim.  As I have indicated, the plaintiff says that it was either in a partnership with, or in a joint venture with, the first defendant.  Taking the possibility of a partnership first, it is nowhere pleaded that the partnership has come to an end.  It has long been the case that a court of equity as part of the general administration of a dissolved partnership would order the taking of accounts.  But it is difficult to imagine accounts being ordered in a subsisting partnership.  The same is true in relation to the joint venture.  Presumably, if the relationship between the plaintiff and the first defendant is not a partnership but a joint venture then no fiduciary obligations are owed by the parties to each other.  Whether a court of equity will order accounts when such a relationship is dissolved is open to question:  see North Eastern Railway Co v Martin (1848) 2 Ph 758 at 762. But even if the remedy of accounts is open it is not specified in the pleading whether, and if so in what circumstances, the contractual relationship between the plaintiff and the first defendant has come to an end. The end of the joint venture would, it seems to me, be a prerequisite to any order for the taking of accounts. On this basis then, I cannot see how the pleaded case could give rise to the relief claimed by the plaintiff. In my view, the whole of the statement of claim ought be struck out and the plaintiff should have leave to replead.

8. Given that no statement of claim is presently on foot, it would seem to me that it is not open to the plaintiff to seek summary judgment.  It may be that in certain circumstances where there are defects in a statement of claim of form rather than substance an application for summary judgment could proceed, even in the absence of a settled pleading:  see Westpac Banking Corporation v Thorpe, unreported; SCt of WA (Master Sanderson); Library No 970465; 18 September 1997. However, this is not one of those cases. In my view, the defects in the statement of claim are so significant as not to properly plead a cause of action by the plaintiff against the defendants. Once the position is rectified then an application for summary judgment might properly be brought, subject, of course, to the plaintiff obtaining leave under O 14 r 1(1). For that reason I will not dispose finally of the plaintiff's application for summary judgment but, rather, adjourn it pending finalisation of the statement of claim.

9. The plaintiff's statement of claim will be struck out.  There will be leave to bring in a minute of amended statement of claim.  I will hear the parties as to the precise form of the orders and as to costs.