Kyle Bay Holdings Pty Ltd v Commercial & General Acceptances Pty Ltd

[1996] FCA 637

CATCHWORDS

PROCEDURE - striking-out - defence - whether appropriate - failure to provide particulars of whether agreements written or oral - substance of conversations - identification of individuals and location - reliance on inability to better particularise - whether appropriate in the circumstances.

Rules of the Federal Court of Australia, O11, r16

Marriot v Chamberlin (1886) 17 QB 154
Zierenberg v Labouchere (1893) 2 QB 183

KYLE BAY HOLDINGS PTY LTD and ORS v COMMERCIAL AND GENERAL ACCEPTANCES PTY LTD and SCOTT
NO WAG 6 OF 1996

R D NICHOLSON J
PERTH
23 JULY 1996

IN THE FEDERAL COURT OF AUSTRALIA            )         LIMITED DISTRIBUTION

WESTERN AUSTRALIA DISTRICT REGISTRY       )

GENERAL DIVISION  )  NO WAG 6 OF 1996

B E T W E E N:  KYLE BAY HOLDINGS PTY LTD and ORS

Applicants

and

COMMERCIAL AND GENERAL ACCEPTANCE PTY LTD and SCOTT

Respondents

MINUTE OF ORDER

JUDGE MAKING ORDER: R D NICHOLSON J

DATE OF ORDER:  23 JULY 1996

WHERE MADE:  PERTH

THE COURT ORDERS THAT:

1.The applicants' motion filed on 19 June 1996 be dismissed.

2.The applicants pay the costs of the first respondent on the motion.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA            )         LIMITED DISTRIBUTION

WESTERN AUSTRALIA DISTRICT REGISTRY       )

GENERAL DIVISION  )  NO WAG 6 OF 1996

B E T W E E N:  KYLE BAY HOLDINGS PTY LTD and ORS

Applicants

and

COMMERCIAL AND GENERAL ACCEPTANCE PTY LTD and SCOTT

Respondents

CORAM:R D NICHOLSON J

DATE:23 JULY 1996

PLACE:PERTH

REASONS FOR JUDGMENT

The applicants' move the Court to strike-out certain paragraphs of the first respondents defence pursuant to O11, r16 of the Rules of the Federal Court of Australia ("FCR").  They do so on the grounds that those paragraphs disclose no reasonable defence or other case appropriate to the nature of the pleading and that they have a tendency to cause prejudice, embarrassment or delay in the proceedings.

The motion is brought following what the applicants consider to be unsatisfactory answers to their request for further and better particulars.

It is not in dispute that where information asked for is clearly necessary to enable a party properly to prepare for trial, the information must be given even though it discloses some portion of the evidence on which the other party proposes to rely at trial: Marriot v Chamberlin (1886) 17 QB 154 at 161; Zierenberg v Labouchere (1893) 2 QB 183 at 187‑8.

The objects of the strike‑out application may be categorised into the following groups:

Absence of material facts

Paragraph 20 of the defence reads:

"By reason of the matters pleaded at pars18(a)(i) and 19 above, the second and third applicants offered alternative security ("the alternative security") for the loan comprising:

(a)first registered mortgage over the Nursing Home;

(b)second registered mortgage over St Luke's Nursing Home, Mosman Park Nursing Home, Tuohy's Nursing Home, St Luke's Hostel, Mosman Park Hospital and 44 Irvine Street, Peppermint Grove;

(c)directors guarantees."

Particulars were sought as to when and where the alternative security was offered, who acted on behalf of the second and third applicants, to whom was the offer made and whether it was oral or in writing.  The answers supplied the date of 25 April 1994 and said the alternative security was offered to the proposed lender but in all other respects it was said the first respondent was unable to better particularise the plea or, alternatively, objects to answering the request on the ground the request was not one for particulars but a request for evidence.

For the first respondent it is said this is not a case of the applicants not knowing the case they have to meet.  In my opinion that is correct, no basis for strike‑out is established on this paragraph.

Substance of conversations

In pars26(a), (c-g), 28(a) and (b) and 32(a) of the defence it is pleaded the second respondent advised the first respondent of certain relevant facts.  In the request for particulars the applicants sought to have the first respondent particularise where and to whom and whether orally or in writing the second respondent made the pleaded conversation.  The first respondent answered it was unable to better particularise. 

The second respondent is a former servant of the first respondent.  The second respondent is a separate party to this action.  It may not be until trial that the evidence of the second respondent is available and open to cross‑examination.  The matters pleaded are potentially within the knowledge of the second respondent rather than the first respondent.  In my opinion, no basis for strike‑out is established.

Identification of individuals

Then it is sought to strike‑out pars6(a), 20 and 26(a) of the first respondents' defence on the ground the individuals involved in the matters pleaded are not identified.  For example, in par6(a) of the defence it is pleaded on behalf of the first respondent that in or about late February or early March 1996 the second and third applicants presented to the first respondent a certain document.  Similarly in par20 the person to whom the alternative security was offered is not identified.

In my opinion, the paragraphs do not prejudice the applicants.  Additionally, given the nature of the relationship between the first and second respondents it is not a case where the first respondent can be said to have wilfully withheld particulars. 

Location

Similarly there is a request for identification of location at which matters pleaded in pars6(a), 26(a), (c-g), 28(a), (b) and 32(a) occurred.  These have been referred to above and no basis for strike‑out is established. 

Inability to better particularise

Then it is said the first respondent's claim that it is unable to better particularise certain paragraphs is unsupported by evidence.  On the face of the papers, however, the second respondent is a separate party not bound to account to the first respondent.  Where the matters are within the knowledge of the second respondent it cannot therefore be anticipated that the first respondent should be ordered to particularise or penalised by a strike-out.  Additionally, counsel for the first respondent states it has been deprived of the

opportunity to interrogate the second respondent and there is no reason in an interlocutory application why the Court should not rely on that statement.

In relation to all matters I am not satisfied the first respondent has not stated the material facts or has filed a defence which in its relevant paragraphs is prejudicial in the circumstances to the applicants.

The trial judge will have in mind if it is the case that the first respondent has no knowledge of the evidence of the second respondent until trial.  Any prejudice which emerges in that situation can be dealt with at the time of trial.  In the meantime the applicants know the material issues they are required to meet in the defence.

Accordingly the application for a strike‑out should be dismissed.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date:23 July 1996

APPEARANCES

Counsel for the Applicant:                 Mr B Taylor

Solicitors for the Applicant:               Karp & Monaghan

Counsel for the Respondent:             Mr B Pepperwell

Solicitors for the Respondent:           Chalmers & Partners

Date of Hearing:  19 July 1996

Date of Judgment:  23 July 1996