Lawford Robinson Pty Ltd v Boston Hill Limited

[2009] WADC 32

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   LAWFORD ROBINSON PTY LTD -v- BOSTON HILL LIMITED & ANOR [2009] WADC 32

CORAM:   REGISTRAR KINGSLEY

HEARD:   24 FEBRUARY 2009

DELIVERED          :   6 MARCH 2009

FILE NO/S:   CIV 2835 of 2004

BETWEEN:   LAWFORD ROBINSON PTY LTD

Plaintiff

AND

BOSTON HILL LIMITED
First Defendant

ANTHONY WILLIAM ROBINSON
Second Defendant

Catchwords:

Practice - Application for further and better particulars - Application for interrogatories

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr B P Wheatley

First Defendant              :     Mr D Kew

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Mossenseons

First Defendant              :     Kott Gunning

Second Defendant         :     Unrepresented

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

Nil

1. REGISTRAR KINGSLEY:  The plaintiff has brought two applications firstly for the defendant to respond to a request for further and better particulars of defence, and secondly, for leave to administer interrogatories.  The action is listed, again, for trial commencing 29 April 2009 for three days.

2. The plaintiff's request for particulars is dated 21 November 2008 and arises on the plaintiff's counsel's submissions because of the first defendant's amended defence filed 7 November 2008 and the lack of proper response to its request.

3. The plaintiff seeks particulars of dates on which the defendant received fees referred to in par 9 of the amended defence.  The plaintiff pleads at par 9 of the amended statement of claim ‑ which is now version 19 ‑ that the defendant received the sum of $83,648 by way of brokerage fees and monthly trading brokerage fees but has failed to pay those fees to the plaintiff.  The defendant at par 9 admits receiving the brokerage fees but otherwise denies the allegation.

4. Paragraph 9A of the amended defence particularises according to date and amount how the amount of $39,745.02 is made up, which the first defendant pleads it has paid to the plaintiff in compliance with its obligations under the agreement.  The plaintiff seeks particulars of how each amount is calculated.

5. Finally the plaintiff seeks particulars of par 9B of the amended defence as to how the sum of $24,333.63 was deducted by ITC from the fees paid to the first defendant by ITC.  This plea was in the plaintiff's statement of claim from version 1 and by version 4 of the statement of claim was particularised by the plaintiff as the sum as advised by ITC to the plaintiff by email dated 10 December 2004.  The plea was removed from this statement of claim in version 19.

6. The authorities in relation to request for particulars make it clear that whilst particulars have a number of functions, broadly, the objective is to enable the other side to be fully informed as to the nature of the case they have to meet, and to know what evidence they ought to be prepared with and thereby prevent being taken by surprise.

7. The plaintiff pleads that the first defendant received the brokerage fee and this is admitted.  What is in issue is the plea that those fees were not paid to the plaintiff.  In my opinion it is not relevant on what dates the brokerage fees were received by the defendant.  In any event the details have been disclosed by way of an email dated 10 December 2004.  Further, it appears, from the first defendant's counsel's submission that the bank statements of the first defendant have been discovered.

8. As to the sum of $24,333.63 going to reduce the plaintiff's entitlement, that plea was part of the plaintiff's case since version 4 of the statement of claim.  The plaintiff at that point knew the case it was putting forward.  As the first defendant now raises the issue of the deduction I suggest the plaintiff well knows the case it has to meet.

9. As to the interrogatories the plaintiff's counsel submits that the amended defence filed 7 November 2008 raises significant matters including an agreement between the parties entered into prior to a written note dated 31 May 1999 and the fact that the agreement between the parties was subject to a term that any fees would be paid 90 per cent to Robertson and 10 per cent to the defendants.  The interrogatories also relate to the reduction of $24,333.63.

10. The agreement referred to by the plaintiff's counsel is an agreement between the second defendant Anthony Robertson in his personal capacity and the first defendant for him to sell securities for the first defendant.  The first defendant pleads it was an express term of this agreement that any broker's fees earned by the second defendant in his personal capacity would be paid 90 per cent to the second defendant and 10 per cent to the first defendant.

11. In my opinion these interrogatories come far too late.  Further one of the fundamental purposes of an interrogatory is to prove some material facts necessary to the interrogating parties' cause of action, or defence, by tendering the interrogatory and the formal answer so as diminish the burden of proof.  The first defendant has consistently said that any agreement between the parties was entered into in on or about April 1999 (see defence dated 11 January 2006) and now amplifies that plea by stating that the agreement came about prior to 18 May 1999.  The answers given would not in my opinion reduce the burden of proof upon the plaintiff nor make any significant reduction in the length of the trial.  The respective protagonists in the trial will need to be present and accordingly I see no saving in costs efficiency or the length of the trial.

12. That being the case the plaintiff's application is dismissed and the plaintiff is to pay the first defendant's costs on the application and the hearing.