Jubilee Road Pty Ltd v STP (Gas) Retail Pty Ltd
[1999] WASC 48
JUBILEE ROAD PTY LTD -v- STP (GAS) RETAIL PTY LTD & ANOR [1999] WASC 48
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 48 | |
| Case No: | CIV:2367/1996 | 7 MAY 1999 | |
| Coram: | MASTER BREDMEYER | 4/06/99 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Applicaton allowed in part | ||
| PDF Version |
| Parties: | JUBILEE ROAD PTY LTD STP (GAS) RETAIL PTY LTD EMAIL LTD |
Catchwords: | Pleading Adequacy of pleading Misleading and deceptive conduct Application to amend writ and statement of claim |
Legislation: | Fair Trading Act 1987 (WA), s 4B, s 6 and s 38 Sale of Goods Act 1895 (WA), s 14 Trade Practices Act 1974 (Cth), s 52 and s 82 |
Case References: | Cabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR 40-950 Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 Demogogue Pty Ltd v Ramenski (1992) 39 FCR 31 Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 Janssen-Cilag Pty Ltd v Pfzer Pty Ltd (1992) 37 FCR 526 Marks v GIO Australia Holdings Ltd (1998) 73 ALJR 12 Wardley Australia Ltd v Western Australia (1992) 157 CLR 514 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Dallas Development Corporation Pty Ltd v WA Land Authority, unreported; FCt SCt of WA; Library No 980245; 7 May 1998 Donoghue v Stevenson [1932] AC 562 Dye v Griffin Coal Mining Co Pty Ltd, unreported; FCt SCt of WA; Library No 980404; 23 July 1998 Karedis Enterprises Pty Ltd v Antoniou (1995) 137 ALR 544 Karsaridis v Kastoria Fur Products [1984] 37 SASR 345 Ketteman v Hansel Properties Ltd [1987] AC 189 Mutual Life & Anor v Evatt (1968) 122 CLR 556 Nolan v Westpac (1989) ATPR 40 - 982 Renowden v McMullin (1970) 123 CLR 584 San Sebastian Pty Ltd v Minister Administering the Environmental Planning & Assessment Act, 1979 (1986) 162 CLR 340 Sneade v Wotherton Barytes & Anor [1904] 1 KB 295 Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 Weldon v Neal [1887] 19 QBD 394 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : JUBILEE ROAD PTY LTD -v- STP (GAS) RETAIL PTY LTD & ANOR [1999] WASC 48 CORAM : MASTER BREDMEYER HEARD : 7 MAY 1999 DELIVERED : 4 JUNE 1999 FILE NO/S : CIV 2367 of 1996 BETWEEN : JUBILEE ROAD PTY LTD
- Plaintiff
AND
STP (GAS) RETAIL PTY LTD
First Defendant
EMAIL LTD
Second Defendant
Catchwords:
Pleading - Adequacy of pleading - Misleading and deceptive conduct - Application to amend writ and statement of claim
Legislation:
Fair Trading Act 1987 (WA), s 4B, s 6 and s 38
Sale of Goods Act 1895 (WA), s 14
Trade Practices Act 1974 (Cth), s 52 and s 82
Result:
Applicaton allowed in part
(Page 2)
Representation:
Counsel:
Plaintiff : Mr A N Siopis
First Defendant : Mr G I Macnish
Second Defendant : No appearance
Solicitors:
Plaintiff : Max Owens & Co
First Defendant : Cocks Macnish
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Cabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR 40-950
Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84
Demogogue Pty Ltd v Ramenski (1992) 39 FCR 31
Fraser v NRMA Holdings Ltd (1995) 55 FCR 452
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83
Janssen-Cilag Pty Ltd v Pfzer Pty Ltd (1992) 37 FCR 526
Marks v GIO Australia Holdings Ltd (1998) 73 ALJR 12
Wardley Australia Ltd v Western Australia (1992) 157 CLR 514
Case(s) also cited:
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Dallas Development Corporation Pty Ltd v WA Land Authority, unreported; FCt SCt of WA; Library No 980245; 7 May 1998
Donoghue v Stevenson [1932] AC 562
Dye v Griffin Coal Mining Co Pty Ltd, unreported; FCt SCt of WA; Library No 980404; 23 July 1998
Karedis Enterprises Pty Ltd v Antoniou (1995) 137 ALR 544
Karsaridis v Kastoria Fur Products [1984] 37 SASR 345
Ketteman v Hansel Properties Ltd [1987] AC 189
Mutual Life & Anor v Evatt (1968) 122 CLR 556
Nolan v Westpac (1989) ATPR 40 - 982
Renowden v McMullin (1970) 123 CLR 584
(Page 3)
San Sebastian Pty Ltd v Minister Administering the Environmental Planning & Assessment Act, 1979 (1986) 162 CLR 340
Sneade v Wotherton Barytes & Anor [1904] 1 KB 295
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Weldon v Neal [1887] 19 QBD 394
(Page 4)
1 MASTER BREDMEYER: The plaintiff has applied by chambers summons dated 19 March 1999 for leave to amend the statement of claim. Since the filing of the summons the plaintiff has produced a revised minute of proposed amended statement of claim dated 4 May 1999 (the "minute")which is what I will consider. The plaintiff has also applied by chambers summons dated 1 April 1999 for leave to amend the endorsement on the writ of summons. The original endorsement read:
"The Plaintiffs claim is for damages for breach of contract, negligence and breach of statutory duty against the first defendant in respect of the supply of petrol storage tanks to the plaintiff at Bunbury and against the second defendant for the installation of petrol tanks for the plaintiff at Bunbury.
AND
The plaintiff claims:-
(a) damages;
(b) interest;
(c) costs."
- The proposed new endorsement, so far as it concerns the first defendant, is as follows:
"With respect to the contract for the supply of fibreglass storage tanks between the first defendant and first plaintiff, the first and second plaintiffs claim damages and interest pursuant to Section 32 of the Supreme Court Act against the first defendant for:-
- · Breaches of warranties or conditions implied by law pursuant to the Sale of Goods Act WA, the Trade Practices Act (Cth) and the Fair Trading Act (WA);
· Misleading and deceptive conduct under the Trade Practices Act (Cth).
2 The first defendant has argued that the amendment of the writ should not be allowed so as to include a claim for misleading and deceptive conduct as that statutory cause of action is time-barred. Under s 82(2) of
(Page 5)
- the Trade Practices Act (Cth) an action for damages based on misleading and deceptive conduct "may be commenced at any time within three years after the day on which the cause of action accrued".
3 The trade practices claim against the first defendant is pleaded in par 35 onwards and in summary is in the following form. On or about 30 November 1995 the plaintiffs entered into a contract with the first defendant for the first defendant to supply five fibreglass tanks to the plaintiff which the plaintiff wanted to install at a new service station site at Australind. Prior to entering into that contract the first defendant represented (1) that each of the tanks supplied would be fit for the purpose of securely storing petroleum products when installed at the premises beneath a cement forecourt area which would be traversed by heavy vehicles, and (2) the first defendant would give accurate information and instructions for the proper and effective installation of the tanks. It is said that those representations were made without any reasonable grounds. The tanks were installed on or about 13 February 1996. The first defendant's agent, Kelly, who was onsite at the time and who was aware of the level of the water table at the premises, in response to a query from Robinson, for the second defendant, (1) advised that the white sand which had been excavated from the holes where each of the tanks was to be installed was suitable to be used as backfill, and (2) he failed to advise Robinson to use pea gravel or crushed stone as backfill and to install a filter to retain the backfill in position. The tanks were installed using the white sand taken out as backfill and were later covered over with concrete. On or about 8 or 9 August 1996 when the second defendant was commissioning the fuel pumps it was discovered that the two largest tanks, each of 90,000 litres, were cracked and leaked. As a result the two large tanks were removed and the plaintiff installed new steel tanks in their place. It is said that the two representations made by the first defendant were misleading in that the native soil used as backfill was unsuitable as backfill.
4 The first defendant has argued that, as the defective tanks were installed on 13 February 1996, the plaintiffs suffered their loss then, and hence, this cause because statute barred on 13 February 1999. As stated above, the application for leave to amend the writ is dated 1 April 1999 and the application for leave to amend the statement of claim is dated 19 March 1999. I do not agree with the defendant's argument. Lower courts have been warned by the High Court in Wardley Australia Ltd v Western Australia (1992) 157 CLR 514 at 533 and 559 not to reject s 52 claims as time-barred except in the clearest of cases. I consider the plaintiffs claim is perfectly arguable that the damage to the tanks was not
(Page 6)
- suffered until they were commissioned in August 1996 when the cracks were discovered.
5 The proposed amendments to the writ and statement of claim among other things introduce the second plaintiff to this action. The first plaintiff, it is pleaded, is the proprietor of the premises along the Australind bypass known as "Shell Gateway" and that is a company controlled by its director, Barry Edward Myles, who is also a director of, and controls, the second plaintiff. The first plaintiff developed the premises from a vacant lot into a 24-hour service station, delicatessen and restaurant business. After the completion of the development the first plaintiff leased the business to the second plaintiff and it is pleaded that, in entering into that lease, the second plaintiff acted "in reliance on the knowledge and belief as pleaded herein then held by its director Myles". The misleading and deceptive conduct claim is pleaded by both plaintiffs. In relation to the second plaintiff, it is pleaded that two representations made by Robinson at the time of installation mentioned above were made to both plaintiffs. Both plaintiffs relied on those representations and suffered loss when it was discovered that they were false. The second plaintiff's loss is particularised in par 40:
"a. Loss of gross trading income August $6,906
b. Loss of gross trading income September $19,473
Total $26,379"
6 The first defendant says that neither of the two representations was made to the second plaintiff. There is no plea that the first defendant was aware of the second plaintiff's existence and hence there can be no arguable claim by the second plaintiff. The plaintiffs' response to that argument is that both plaintiff companies are controlled by their common director Myles, and, in reliance upon the first defendant's representations mentioned, and induced by the same, the first plaintiff entered into the supply and installation contracts and the second plaintiff entered into the lease mentioned. The plaintiffs have argued that liability under s 82 of the Trade Practices Act (Cth) merely requires proof of a relevant nexus between the conduct in breach of the Act and the loss or damage actually suffered. They have referred me to Janssen-Cilag Pty Ltd v Pfzer Pty Ltd (1992) 37 FCR 526 and Cabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR 40-950 at 50,378. In Janssen the respondent had made some misleading and deceptive conduct promoting its drug Combantrin as a result of which members of the public and pharmacists purchased
(Page 7)
- Combantrin in preference to the applicant's drug Vermox and the applicant lost sales. The applicant sued for misleading and deceptive conduct and the respondent argued that damages can only be recovered under s 82 where the misleading and deceptive conduct induced the applicant to suffer loss. In that case the misleading conduct induced members of the public and pharmacists to purchase the respondent's drug, which, in turn, caused the applicant loss. It was held by Lockhart J that the plaintiff could recover for loss and damage under s 82; that such loss and damage is not confined to the person who relied on the representation which constituted a breach of s 52. He held that the words of s 82 that a person who suffers loss or damage "by" conduct of another person in contravention of Pt 4 etc of the Act may recover the amount of the loss or damage against that other person, are words of general application and encompass claims for damages by rival traders. At 529 Lockhart J said:
"Section 82 is the vehicle for the recovery of loss or damage for multifarious forms of contravention of the provision of Parts IV and V of the Act. It is important that rules laid down by the courts to govern entitlement to damages under s 82 are not unduly rigid, since the ambit of activities that may cause contravention of the diverse provisions of Parts IV and V is large and the circumstances in which damage therefrom may arise will vary considerably from case to case."
What emerges from an analysis of the cases (and there are many of them) is that they do not impose some general requirement that damage can be recovered only where the applicant himself relies upon the conduct of the respondent constituting the contravention of the relevant provision.
Also, a perusal of the provisions of Pt IV and Pt V, the contravention of which gives rise to an entitlement to an applicant for compensation for loss or damage, points to the conclusion that applicants may claim compensation when the contravener's conduct caused other persons to act in a way that lead to loss or damage to the applicant".
(Page 8)
- whether the second plaintiff knew of the representations or not. In the same way in Janssen even if the applicant had not seen the misleading advertisements for the respondent's drug, it suffered loss because members of the public and pharmacists who saw the misleading advertisements bought the respondent's drug in preference to the applicant's drug. In this case the pleader has attempted to plead the second plaintiff's reliance on the representations. He has pleaded in par 38 that in reliance on the representations the second plaintiff entered into the lease. I find that very tendentious because surely, it is more likely that the second plaintiff entered into the lease because the first plaintiff told it that the premises would be available for lease from a certain date. But on the authority of Janssen I consider that, even apart from that doubtful plea, the second plaintiff's plea that its loss of income was caused by the conduct of the first defendant, is arguable.
8 The first plaintiff has sued for breach of contract for the supply of the six tanks which is called "the supply contract". The first defendant's offer to sell the tanks dated 30 October 1995 was to sell the tanks at the following prices:
1 x 5000 litres $4,400
1 x 10,000 litres $7,000
1 x 30,000 litres $10,000
2 x 90,000 litres at $22,350 (each) $44,700
Freight $13,500
Total$79,600
9 It is pleaded that this offer to sell was accepted on 30 November 1995. Paragraph 11 pleads implied terms of the supply contract that each of the tanks supplied would be fit for the purpose of securely holding petroleum products when installed beneath the concrete forecourt of the service station at the premises. Particulars of that are given. The term is said to be implied by law pursuant to s 14 of the Sale of Goods Act 1895 (WA) and s 4B and s 71 of the Trade Practices Act, alternatively s 6 and s 38 of the Fair Trading Act 1987 (WA) and the matters referred to in par 7 above. The first defendant challenges the reference to the Trade Practices Act and the Fair Trading Act. As these two Acts are identical I will refer to the Trade Practices Act only. The defendant has argued that this implied term is only available to a
(Page 9)
- consumer and a consumer is defined in s 4B of the Act as one who has acquired goods which do not exceed $40,000. The defendant says this contract clearly exceeds that. Prima facie it does. The goods purchased taken as a group exceed $40,000 but taken singly they do not. Heydon Trade Practices Law at par 16.230 says that a distinction must be made between single items normally purchased in groups and single items not normally purchased in groups. In the former case, it is the total price which is relevant, but in the latter case it is the price of each single item which is relevant. Fuel storage tanks are not normally purchased in groups. I consider that the plaintiff's plea is arguable and should be allowed to stand. The defendant can raise the point in its defence and it will be resolved at trial.
10 Paragraphs 41 to 45 deal with the plaintiffs' claim for misleading and deceptive conduct. Paragraph 41 refers inter alia to par 19 and they are the two representations said to have been made by the first defendant's representative to the second defendant's representative at the time of installing the tanks on 13 February 1996. The first defendant was the supplier of the tanks and the second defendant was the installer of the tanks. The defendant has argued that the representations pleaded in par 19 were allegedly made by the first defendant to the second defendant and nowhere is it pleaded that the first or second plaintiffs relied upon the first defendant's representations. Accordingly no cause of action is disclosed by the facts pleaded and the amendment ought not to be allowed. That argument is based on the conventional pleading of misleading and deceptive conduct which is:
(i) the defendants misleading and deceptive conduct, often in the form of a representation, to the plaintiff;
(ii) the plaintiffs' reliance on that conduct, eg by entering into a contract with the defendant; and
(iii) the plaintiff thereby acted to his detriment.
- But that is not the only way of pleading this cause. On the authority of Janssen the defendant's misleading and deceptive conduct need not be directed towards the plaintiff. The conduct can be directed towards a third party which acts on it in a certain way which thereby indirectly causes loss to the plaintiff. So, I consider this plea is arguable. The misrepresentations, which constituted a breach of the Act, were made to the second defendant, who thereby wrongly installed the tanks which
(Page 10)
- caused loss to the plaintiffs. That is arguably loss or damage caused "by" the misleading and deceptive conduct of the first defendant.
11 In commenting on par 46 to par 49 of the minute, which are part of the plea relating to misleading and deceptive conduct, the first defendant says that par 21 pleads that the first defendant by a letter dated 19 April 1996 forwarded to Belven Enterprises on behalf of the first plaintiff, a document which had been completed by the second defendant, namely a document entitled "Installation Checklist". The defendant says that the act of forwarding this checklist to the plaintiff was not an act done "in trade or commerce" since it had no relevance to an actual or proposed commercial relationship or dealing. The supply contract was at an end and the first plaintiff and first defendant had no pleaded ongoing commercial relationship. Consequently no cause of action can arise under s 52 of the Trade Practices Act.
12 I consider that there are three pleas of misleading and deceptive conduct against the first defendant in the minute and that par 21 relates to the third of these. The first relates to the representation in par 7.3.2 that the fibreglass tanks manufactured by the first defendant could sustain heavy loads such as trucks running over them and were suitable for their proposed use. That representation was made before the supply contract was made. The second cause arises out of the representations pleaded in par 19 that on the day of the installation, 13 February 1996, the first defendant's man advised the second defendant's man that the white sand taken out of the holes was suitable as backfill and his failure to advise the second defendant to use gravel or crushed stone as backfill surrounded by a filter to retain the fill in position. The third cause is misleading and deceptive conduct by silence, and that is pleaded in par 22, that at no time did the first defendant warn or advise the plaintiff after the installation of the tanks that the installation was defective, that the plaintiff should not allow heavy vehicles to be used above the tanks and that the plaintiff should not install a cement forecourt cover over the tanks. That is a misrepresentation arguably amounting to a breach of the Act by silence which is permissible. I consider that par 21 is not a material fact for that plea or for any other plea. It is simply a piece of evidence in support of the plaintiff's contention that the tanks were not properly installed. I consider that par 21 should be deleted from the minute.
13 In relation to par 22 the first defendant argues that nowhere is it pleaded that the first defendant had an obligation to draw any information to the first plaintiff's attention or that the first plaintiff relied upon this alleged misleading or deceptive conduct.
(Page 11)
14 It is true that in this minute there is no plea of a duty on the first defendant to warn the first plaintiff of the matters mentioned in par 22 namely the defective installation of the tanks. In Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 at 95, Lockhart J said:
"That silence may be relied upon in order to show a breach of section 52 when the circumstances give rise to an obligation to disclose relevant facts … The duty to disclose is not confined to cases where there are particular relationships, such as trustee and beneficiary or solicitor and client, principal and agent and guardian and ward. There is no useful purpose in seeking to analyse the circumstances in which the duty to disclose will arise as this must depend upon the facts of each case."
15 Miller's Annotated Trade Practices Act (1999 revised ed) at 300 refers to Demogogue Pty Ltd v Ramenski (1992) 39 FCR 31:
"The Federal Court has confirmed that it is the natural meaning of the terms of section 52 which govern its interpretation and, consistent with that natural meaning, the essential question is whether, in all the circumstances constituted by acts, omissions, statements or silence, there has been conduct likely to mislead or deceive."
16 The learned author then quotes Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 for this proposition:
"To enquire, in a section 52 case, whether an independent duty to disclose has arisen is to digress from the issues which that section raises."
17 Samuels JA in Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 at 88 said:
"Silence is not misleading only where there is a duty to disclose at common law or in equity. It may simply be the element in all the circumstances of a case which renders the conduct in question misleading or deceptive."
18 I conclude from this that is not essential to plead that the first defendant owed a duty to warn the first plaintiff that the installation of the tanks had been wrongly done. It will be up to the trial Judge, after considering all the circumstances of this case, to decide whether the first
(Page 12)
- defendant's failure to advise of the wrong installation between February and August 1996 amounted to misleading and deceptive conduct. In considering that question, it is in the plaintiffs' favour that the first defendant sent a man to be present at the installation and that man offered advice to the installer on how the tanks should be installed, meaning, one could readily infer, advice on how the tanks should be properly installed. I conclude that the plea is not bad for failing to plead a duty owed by the first defendant on this point.
19 The defendant has argued that the alleged conduct could not have caused all the loss pleaded in par 30 and par 40 of the minute. In particular the defendant argues that the first plaintiff cannot claim both the damage pleaded in subpar A namely "cost of cracked tanks $44,700" and in par N "cost of new tanks from Southcorp (2 x 45,000 litre tanks) $34,500". I agree with that submission. Logically one cannot claim damages for both. One or other particular should be struck out. The defendant has also argued that presumably had the first defendant drawn the problems with the installation to the plaintiffs attention, then the first plaintiff would still have incurred many of the costs in removing the tanks and installing the steel tanks or re-installing the fibreglass tanks in any event. I agree with that submission but do not propose to strike out any of the particulars of damage because par 30 is not simply dealing with the third plea of misleading and deceptive conduct. It is pleading the damage arising out of breach of contract, see par 27, and arising out of the second cause of misleading and deceptive conduct, namely the misrepresentations made at the time of installation. I consider that these particulars of special damage are best left to the trial Judge.
20 Paragraphs 57 to 60 plead two causes of negligence by the first defendant. The first defendant has argued that these paragraphs fail to plead a sustainable cause of action and accordingly the amendment ought not to be allowed. Paragraphs 19 and 20 plead that advice was given by the first defendant to the second defendant at the second defendant's request and that the second defendant relied upon that advice. The advice was not given to the first plaintiff. It is said that no duty to exercise reasonable care to ensure that the advice was accurate could have been owed by the first defendant to the plaintiff in respect of advice given by the first defendant to the second defendant. In any event neither the first plaintiff nor the second plaintiff could have relied on that advice given as it was to the second defendant.
21 I consider the plea is arguable. Although it is not pleaded in par 19 that the second defendant was the agent for the first plaintiff, that is
(Page 13)
- nevertheless abundantly clear from the pleading. The first plaintiff engaged the second defendant to install the tanks. That is pleaded in par 14 to par 16 and the contract is called the "installation contract". The second defendant was to install the tanks for a price of $103,317. So, clearly, when the tanks were being installed by the second defendant on 13 February 1996 the second defendant was the plaintiffs agent or contractor. The first defendant was a supplier of fibreglass tanks for service stations. It may be that the first defendant need not have offered any advice to the installer as to how the tanks should be installed, but, having chosen to offer some advice on 13 February, I consider it is arguable that it had a duty to give competent and accurate advice.
22 Paragraphs 61 to 64 plead a separate alternative cause of negligence arising out of the checklist under par 21 and the plea in par 22 that after the installation the first defendant failed to advise the first plaintiff that the installation was defective. The defendant has argued that there is no conceivable basis upon which the first defendant could have owed the duty to the plaintiff as alleged in par 61 to par 64. There was no plea that the plaintiff sought advice nor that the first defendant undertook to provide advice in relation to the proper installation of tanks. In any event this is entirely baseless to claim that because the first defendant sent the first plaintiff a copy of the installation checklist filled out by the second defendant that it was effectively warranting that the installation was carried out in accordance with the first defendant's installation guidelines.
23 I agree with part of the first defendant's submission on this. I do not consider it is arguable to say that, sending on to the first plaintiff the second defendant's installation list which revealed how the installation had been done, creates a duty to give competent advice to the plaintiff on the efficacy of the installation. I do not think it is arguable as stated in par 61 that the sending on of the installation checklist was an implied representation that the installation had been properly done. I consider it is arguable from par 19 and par 57, that the first defendant owed a duty to advise that the tanks had been wrongly installed. I think that a reasonable extension of the duty to advise on the proper installation - a duty which it chose for itself by having its man Kelly present at the installation and who offered advice to the second defendant on the proper method of installation. I consider it is arguable that the first defendant breached that duty in not advising the plaintiff after the installation of the faulty installation. Paragraph 61 does not quite plead that. I will strike it out. It can be repleaded to give effect to these reasons. I consider par 62 can stand.
(Page 14)
24 In summary, I propose to give leave to amend the writ of summons as asked and to amend the statement of claim in terms of the minute subject to the deletion of par 21 and par 61. There will need to be some consequential amendments as a result of these deletions.
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