La Rosa, F.C. & L.R. v Norgard, R.S. & Rodpat Nominees Pty Ltd

No judgment structure available for this case.

3UDGMENT No. .6?o...!/ .... c,--,

IN THE FEDERAL COURT ) LIMITED DISTRIBUTION
OF AUSTRALIA \

. - - - - - - - - -- - - -

GENERAL DIVISION 1
BANKRUPTCY DISTRICT I
OF THE STATE OF 1
WESTERN AUSTRALIA

) No. 616 of 1988

RE: FRANCESCO CANDELORO LA ROSA
and LINDA ROBYN LA ROSA
Bankrupts

EX PARTE: ROSS STEWART NORGARD
as Trustee in Bankruptcy of the
Estate of Francesco Candeloro La
Rosa and Linda Robyn La Rosa

Applicant

and
RODPAT NOMINEES PTY LTD
Respondent

RODPAT NOMINEES PTY LTD
Cross-Claimant

and
THE RURAL AND INDUSTRIES BANK
OF WESTERN AUSTRALIA
Cross-Respondent

HINUTE OF ORDER

JUDGE IWKING ORDER: FRENCH J.
DATE OF ORDER: 9 NOVEMBER 1989
WHERE ItADE: PERTH
THE COURT ORDERS THAT:

AUSTRALIA

1. The following parts of the cross-claim be struck out:
(i) sub-paragraph 14(c);

(ii) particulars (1) and (2) thereof;

(iii) the words "through its
responsible officers" in
1 ROV 1459

FEDERAL COURT OF

(iv) particular (2) of the representation (i) pleaded in sub-para.l4(d);

(V) the words "in any shape or form" in the claim, for
relief.
That sub-paragraph 14(e) be amended to indicate that it relates to "the transactions in issue" and to identify the "aforementioned officers".
The cross-claimant have leave to file and deliver an amended cross-claim on or before 16 November 1989.
The cross-respondent have leave to file and deliver an amended defence on or before 23 November 1989.
The cross-claimant to pay the costs of the cross-respondent's strike-out application and costs thrown away by reason of the amendments in any event.
Note: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT

OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT
OF THE STATE OF

WESTERN AUSTRALIA No. 616 of 1988
RE: FRANCESCO CANDELORO LA ROSA
and LINDA ROBYN LA ROSA

Bankrupts

EX PARTE: ROSS STEWART NORGARD
as Trustee in Bankruptcy of the
Estate of Francesco Candeloro La
Rosa and Linda Robyn La Rosa

Applicant

and
RODPAT NOMINEES PTY LTD
Respondent

RODPAT NOMINEES PTY LTD
Cross-Claimant

and
THE RURAL AND INDUSTRIES BANK
OF WESTERN AUSTRALIA
Cross-Respondent

CORAM : FRENCH J.
9 NOVEMBER 1989

REASONS FOR JUDGMENT ON APPLICATION TO STRIKE

OUT PORTIONS OF AMENDED CROSS-CLAIM

The respondent to these proceedings which are brought under ss.120 and 121 of the Bankruptcy Act 1966 cross-claims against the principal creditor in the estate, the Rural and Industries Bank of Western Australia ("the Bank"). By a motion which was filed on 7 August 1989, the Bank seeks to strike out portions of the cross-claim which has been amended pursuant to an order made on 20 September 1989. The general thrust of the -

. .

cross-claim is foreshadowed in the respondent's defence which was the subject of a strike-out application dismissed on 26 June 1989. In that defence the respondent contends that the impugned transactions were carried out with the knowledge, consent, co-operation and under the supervision of the Bank. The Bank, it is alleged, made representations with the intention of inducing the respondent to enter into the transactions which are the subject of the application, and the respondent changed its position in reliance on the representations. On those facts, it is said, there was an estoppel raised against the Bank binding the trustee. It was also contended that it would be unjust and unconscionable for the Bank to participate in the proceeds of any payment to be made by the Respondent to the trustee and in this regard reliance was placed on Ex parte James (1874) LR 9 Ch.App. 609.
matters are raised, the respondent seeks a declaration that the By the cross-claim in which substantially the same
Bank is not entitled to participate in the proceeds of any moneys

recovered by the applicant under the Act and seeks an injunction restraining it from participating in the proceeds of any moneys so recovered. The application to strike out portions of the cross-claim is based in large part upon lack of precision in the pleading and particularisation of material facts. And as a general observation I think that the style of drafting of the cross-claim is in some cases awkward to the polnt of inelegance. But stylistic awkwardness and lack of elegance are not grounds for striking out a pleading if material facts are properly set out in such way as to adequately define the case and enable the opponent to know what it has to meet.

There are some elements of imprecision in the present pleading which require excision and recasting.

Paragraph 14 of the amended cross-claim asserts in effect that the Bank approved the transactions which are the subject of the substantive application as an extension of its approval of a wider range of like transactions between 1-lr La Rosa and the other parties connected with the cross-respondent's

principal, Ferguson. The term "transactlons...in issue involving the exchange of cheques" is used in sub-para.l4(c). It may well be that that is intended as a reference to the "cheque exchange transactions between the La Rosas and the cross-claimant" which are referred to in para.5 of the amended cross-claim. If that is so then it should be made clear.

The term "senior responsible officers" referring to certain officers of the Bank is embarrassingly vague and probably unnecessary. It immediately raises the question "responsible for what". The relevant officers could simply be referred to by their appointment designations and it would then be a mattec of mixed fact and law, depending upon the nature of their authority in each case, whether their conduct bound the Bank.

As to the particulars to sub-para.ll(c), the reference in particular 1 to the creation of "a debt situation" is meaningless. If "debt" is intended then the word "situation" can be deleted. The reference also to the Bank having "approved the business dealings of the La ROSaS including the motor transactions" covers a range of dealings that is wider than the motor transactions and a fortiorr, wider than those in issue. It is to that extent embarrassing.

As to particular 2, the statement attributed to the bank officers that "cheques of TAA or AAA would not be cleared in a way to expose the latter in any risk of non-payment by the La Rosas" is, in my oplnion, embarrrassingly unclear. The "risk" adverted to is not identified in any intelligible way. On a reading of the particular it is evidently intended to report the substance of what the officials said. This particular as it presently stands should be struck out, although there will be leave to amend.

As to sub-para.ll(d), the reference to "aforementioned

senior responsible officers" raises the same difficulties as

words "through its aforementioned senior responsible officers". already adverted to and would be cured by the deletion of the The way in which the representations pleaded were made and the
persons through whom they were made can then be picked up in the
relevant particulars.

Particular 2 of the representation (i) again uses the expression "confirmed that cheques of TAA or AAA would not be cleared in a way to expose the latter in any risk of non-payment by the La Rosas" and that particular is objectionable for the reasons I have already outlined.

In sub-para.(e) the reference to "the transactions" does .

not identify whether they are "the transactions in issue" or "the motor transactions" or some other transactions. It will be necessary to amend sub-para.(e) to clarify that point and to identify the "aforementioned officers".

The metaphorical phrase "shape or form" used in the claim for relief is also embarrassingly devoid of meaning and will be struck out.

Subject to those comments, the pleading can stand and I would propose therefore to make the following orders:

1. The following parts of the cross-claim be struck out:

(i) sub-paragraph 14(c);
(ii) particulars (1) and (2) thereof;

(iii) the words "through its aforementioned

senior responsible officers" in
sub-para.l4(d);
(iv)particular (2) of the representation (i) pleaded in sub-para.l4(d);

(V) the words "in any shape or form" in the

claim for relief.
2. That sub-paragraph 14(e) be amended to indicate that it relates to "the transactions in issue" and to identify the "aforementioned

officers" .

I certify that the preceding
five (5) pages are a true copy of the
Reasons for Judgment of his Honour
Justice French.
Associate: i7 &&/*a~r
Date:

Counsel for the Respondent/Cross-Claimant: Mr J. Schoombee

Solicitors for the Respondent/Cross-Claimant: Bennett & Co.

Counsel for the Cross-Respondent: Mr S. Boyle

Solicitors for the Cross-Respondent: Robinson Cox

Date of Hearing: 8, 9 November 1989

Date of Judgment: 9 November 1989

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Citations

La Rosa, F.C. & L.R. v Norgard, R.S. & Rodpat Nominees Pty Ltd [1989] FCA 690

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JUDGE IWKING ORDER:	FRENCH J.
DATE OF ORDER:	9 NOVEMBER 1989
WHERE ItADE:	PERTH
THE COURT ORDERS THAT:

WESTERN AUSTRALIA	No. 616 of 1988
RE: FRANCESCO CANDELORO LA ROSA and LINDA ROBYN LA ROSA

The respondent to these proceedings which are brought under ss.120 and 121 of the Bankruptcy Act 1966 cross-claims against the principal creditor in the estate, the Rural and Industries Bank of Western Australia ("the Bank"). By a motion which was filed on 7 August 1989, the Bank seeks to strike out portions of the cross-claim which has been amended pursuant to an order made on 20 September 1989. The general thrust of the -	. .
cross-claim is foreshadowed in the respondent's defence which was the subject of a strike-out application dismissed on 26 June 1989. In that defence the respondent contends that the impugned transactions were carried out with the knowledge, consent, co-operation and under the supervision of the Bank. The Bank, it is alleged, made representations with the intention of inducing the respondent to enter into the transactions which are the subject of the application, and the respondent changed its position in reliance on the representations. On those facts, it is said, there was an estoppel raised against the Bank binding the trustee. It was also contended that it would be unjust and unconscionable for the Bank to participate in the proceeds of any payment to be made by the Respondent to the trustee and in this regard reliance was placed on Ex parte James (1874) LR 9 Ch.App. 609.
matters are raised, the respondent seeks a declaration that the By the cross-claim in which substantially the same
Bank is not entitled to participate in the proceeds of any moneys
recovered by the applicant under the Act and seeks an injunction restraining it from participating in the proceeds of any moneys so recovered. The application to strike out portions of the cross-claim is based in large part upon lack of precision in the pleading and particularisation of material facts. And as a general observation I think that the style of drafting of the cross-claim is in some cases awkward to the polnt of inelegance. But stylistic awkwardness and lack of elegance are not grounds for striking out a pleading if material facts are properly set out in such way as to adequately define the case and enable the opponent to know what it has to meet.
There are some elements of imprecision in the present pleading which require excision and recasting.
Paragraph 14 of the amended cross-claim asserts in effect that the Bank approved the transactions which are the subject of the substantive application as an extension of its approval of a wider range of like transactions between 1-lr La Rosa and the other parties connected with the cross-respondent's
principal, Ferguson. The term "transactlons...in issue involving the exchange of cheques" is used in sub-para.l4(c). It may well be that that is intended as a reference to the "cheque exchange transactions between the La Rosas and the cross-claimant" which are referred to in para.5 of the amended cross-claim. If that is so then it should be made clear.
The term "senior responsible officers" referring to certain officers of the Bank is embarrassingly vague and probably unnecessary. It immediately raises the question "responsible for what". The relevant officers could simply be referred to by their appointment designations and it would then be a mattec of mixed fact and law, depending upon the nature of their authority in each case, whether their conduct bound the Bank.

words "through its aforementioned senior responsible officers". already adverted to and would be cured by the deletion of the	The way in which the representations pleaded were made and the
persons through whom they were made can then be picked up in the relevant particulars.
Particular 2 of the representation (i) again uses the expression "confirmed that cheques of TAA or AAA would not be cleared in a way to expose the latter in any risk of non-payment by the La Rosas" and that particular is objectionable for the reasons I have already outlined.

[1989] FCA 690

9 Nov 1989