Kimberley NZI Finance Ltd v O'Sullivan - [1999] WASC 159

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KIMBERLEY NZI FINANCE LTD -v- O'SULLIVAN & ANOR [1999] WASC 159

CORAM: MASTER BREDMEYER

HEARD: 3 SEPTEMBER 1999

DELIVERED : 8 SEPTEMBER 1999

FILE NO/S: CIV 1791 of 1996

BETWEEN: KIMBERLEY NZI FINANCE LTD
Plaintiff
AND
FRANCIS DONALD O'SULLIVAN
Defendant
SOVEREIGN RESOURCES (AUSTRALIA) NL (ACN 009 113 160)
Third Party

Catchwords:

Procedure - Pleadings - Particulars - Request for further and better particulars

Legislation:

Nil

Result:

Application allowed in part

Representation:

Counsel:

Plaintiff:     No appearance
Defendant:     Mr B P Wheatley
Third Party                   :     Ms P E Cahill

Solicitors:

Plaintiff:     No appearance
Defendant:     Murfett & Co
Third Party                   :     Pullinger Stewart

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

Nil

Case(s) also cited:

Smith v Littlemore (1996) 15 WAR 289

MASTER BREDMEYER: This is an application by the third party dated 26 August 1999 for particulars. The relief sought is as follows:
"1.The defendant do provide the following particulars of his statement of claim against the third party:
1.1in respect of paragraph 8.2 of the statement of claim, particulars of the nature of each of the alleged debts pleaded in Answer 1.2 of the defendant's answer or objections to the third party's application for further and better particulars dated 13 August 1999 and the date upon which each of the alleged debts were incurred;
1.2in respect of paragraph 8.5 of the statement of claim, the manner in which Mr Carter was allegedly 'allied' to the defendant, the purpose and effect of that 'alliance' and the identities of each and every one of the alleged 'supporters of the defendant';
1.3in respect of paragraph 14 of the statement of claim, particulars of the alleged 'intentions' of the third party and the defendant that the indemnity would take effect as a deed.
2.Answer 1.4 of the defendant's answer or objections to the third party's application for further and better particulars dated 13 August 1999 be struck out.
3.The defendant do provide particulars in respect of paragraph 10.4 of the statement of claim as to the capacity in which the defendant allegedly commenced negotiations 'on behalf of the third party' with the plaintiff.
4.The defendant do pay the third party's costs of this application."
Some particulars have been provided by the defendant in a document dated 13 August 1999 but the third party considers those particulars inadequate.
The function of particulars is to inform the other side of the nature of the case they have to meet as distinct from the mode in which that case is to be proved, and to prevent the other side from being taken by surprise at the trial.
In relation to par 1.1 of the chamber summons I do not consider that any further particulars are required. Paragraph 8.2 of the defendant's statement of claim against the third party relevantly pleads that at about the end of July 1988 the third party owed certain other moneys to companies related to the defendant. The defendant's particulars of 13 August 1999 list seven companies and the amounts said to be owed to them by the third party. I do not consider it necessary for the third party to know what those debts were for. If the third party needs to know that it can refer to its own accounts for that period. The details of these debts are not significant for the determination of the issues in this case.
The request in 1.2 of the chambers summons seeks further particulars of par 8.5 of the statement of claim which states:
"Mr Carter was allied to the defendant and the defendant's supporters in respect of the third party and its board of directors."
The particulars mentioned on 13 August provide this following answer:
"Along with the defendant, Mr Carter was nominated as a director to the third party by the third party's then largest shareholder Hawkstone Investments Ltd. If the third party seeks further particulars and the Court orders that further particulars must be provided then the defendant will amend par 8.5 of the claim to plead that (the defendant) and Mr Carter were nominated as directors to the third party by Hawkstone Investments Ltd."
The particulars given are not adequate in that they fail to say who were the defendant's supporters in respect of the third party and its board. I cannot see the relevance of pursuing who were the defendant's supporters on that board. I therefore will give leave to amend par 8.5 of the defendant's statement of claim as requested. The request for particulars will thus fall away.
The request in par 1.3 of the chambers summons seeks particulars of par 14 of the statement of claim which pleads:
"Further and alternatively, the defendant and the third party intended at the time the indemnity was executed that the indemnity would take effect as a deed."
In par 18/12/17 of the Supreme Court Practice 1991 (UK), it is stated:
"Intention - if an allegation is made that a person, including a party, had or did not have a particular intention, particulars will be ordered of any overt acts and any other facts relied on to support the allegation: Feeney v Rix [1968] Ch 693."
I consider that the defendant should give particulars of his intention that the indemnity would take effect as a deed. I do not consider that it is necessary that the defendant should give particulars of the third party's intention. The third party is a company and it signed the indemnity under seal. That speaks for itself. I will order the defendant to answer that request in that amended form.
In relation to par 2 of the chamber summons I regard the defendant's answer 1.4 as inconsistent with the particulars found in par 12 of the defendant's defence in the main action. I consider that the inconsistency can be cured by a small amendment to those particulars which I consider I have power to make under O 21 r 7. I will amend the particulars to par 12 of the defence in the main action to read:
"The Agreement was partly oral and partly in writing. Insofar as it was oral it comprised discussions at the time between Peter Wood on behalf of the plaintiff, Peter Farrah on behalf of Sovereign and the defendant on his own behalf …"
Paragraph 3 of the chambers summons relates to par 10.4 of the statement of claim. I will refuse that request for particulars. The answer given is adequate. The defendant negotiated on his own behalf and Mr Farrah negotiated on behalf of the third party.
I will make orders as follows:
1.I amend par 8.5 of the defendant's statement of claim against the third party to read:
"The defendant and Mr Carter were nominated as directors of the third party by Hawkstone Investments Ltd."
2.The defendant is to answer the third party's request 1.3 as amended:
"In respect of par 14 of the statement of claim particulars of the alleged intention of the defendant that the indemnity would take effect as a deed;"
within 14 days.
3.I amend the particulars to par 12 of the defence in the main action to read:
The Agreement was partly oral and partly in writing. Insofar as it was oral it comprised discussions at the time between Peter Wood on behalf of the plaintiff, Peter Farrah on behalf of Sovereign and the defendant on his own behalf.
4.The defendant to pay the third party's costs of this application in any event.