Lazic v Joywood Holdings Pty Ltd
[2015] WADC 70
•12 JUNE 2015
LAZIC -v- JOYWOOD HOLDINGS PTY LTD [2015] WADC 70
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 70 | |
| Case No: | CIV:61/2014 | ON THE PAPERS | |
| Coram: | DEPUTY REGISTRAR HEWITT | 12/06/15 | |
| PERTH | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | One further amendment required Application otherwise dismissed | ||
| PDF Version |
| Parties: | NOVAK LAZIC JOYWOOD HOLDINGS PTY LTD MARC ANGELO ROBERT CUGINI JASON HAMLING |
Catchwords: | Practice and procedure Objection to amendments to statement of claim Turns on its own facts |
Legislation: | Nil |
Case References: | Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
JOYWOOD HOLDINGS PTY LTD
First Defendant
MARC ANGELO ROBERT CUGINI
Second Defendant
JASON HAMLING
Third Defendant
Catchwords:
Practice and procedure - Objection to amendments to statement of claim - Turns on its own facts
Legislation:
Nil
Result:
One further amendment required
Application otherwise dismissed
Representation:
Counsel:
Plaintiff : On the papers
First Defendant : On the papers
Second Defendant : On the papers
Third Defendant : On the papers
Solicitors:
Plaintiff : Earnshaw & Associates
First Defendant : Thompson Downey Cooper
Second Defendant : Thompson Downey Cooper
Third Defendant : Thompson Downey Cooper
Case(s) referred to in judgment(s):
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161
1 DEPUTY REGISTRAR HEWITT: By application filed on 18 November 2014 the defendant obtained orders striking out pars 4, 8, 9 and 11 of the plaintiff's statement of claim.
2 Subsequently the plaintiff filed a minute of amended statement of claim dated 28 April 2015 and on 6 May 2015, it was ordered that the defendant's objections to various of the paragraphs in the amended statement of claim be the subject of written submissions and be determined on the papers. That is the matter which has come before me for determination. I commence my decision by referring to a paragraph within the decision of the Chief Justice in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161[2]:
Before dealing with this specific application, I would observe that both I and the other members of this Court are firmly of the view that interlocutory disputes of this kind must be actively discouraged. In many cases, interlocutory disputes, particularly disputes relating to pleading issues, consume very substantial amounts of time and expense on the part of both the parties and the Court. In many cases, the time and expense involved in the consideration and resolution of the interlocutory dispute is entirely disproportionate to its significance to the just and effective resolution of the case as a whole by mediation or trial. For this reason, this Court will use the existing powers available under the Rules of the Supreme Court ('the Rules') and if necessary amend the Rules to actively discourage disputes of this kind. In very general terms, interlocutory disputes of this kind will only be entertained by the Court if the time and expense involved in their resolution is proportionate to the significance of the dispute to the just and effective resolution of the case. This principle is, in my view, already inherent in the provisions of the Rules when read as a whole, including in particular O 1 r 4A and r 4B, O 29 and O 29A.
3 Before embarking on a detailed examination of the pleadings it will be useful to give a broader outline of the thrust of the plaintiff's claim against the defendant. The plaintiff was the purchaser and the first defendant the vendor of a cleaning business of which the second defendant was a director and the third defendant an employee. It is alleged that the agreement for sale contains certain expressed and implied terms which have been breached and additionally that various representations were made in the preliminaries to the purchase which were misleading and deceptive for which the plaintiff claims a remedy.
4 In my view, the main thrust of this application should be to consider the paragraphs which replace those which are struck out but I shall give some consideration to other matters which are raised in the objections. At the outset I think it appropriate to say that the statement of claim is not an elegant document but I regard the proper test of a pleading is not to be whether it is elegant but whether it sets out a recognised cause of action and gives the defendant proper understanding of that cause of action and a fair opportunity to plead a defence and defend the matter at trial. The first paragraph which has been replaced in the statement of claim is par 4. That paragraph is as follows:
4. Prior to the entry by the Plaintiff and First Defendant into the First Agreement, the First and Second Defendants represented:
a) the cleaning contracts were to carry an unexpired fixed term from the Deferred Settlement Date for a period of two (2) years;
b) Each cleaning contract would generate a particular income for performance of the relevant cleaning work; and
c) The Second and Third Defendants would not undermine, curtail, interfere with or thwart the Plaintiff's performance of the terms of the First Agreement.
- The representation at Paragraph 4(a) was oral insofar as:
a) Shortly prior to 15 January 2008 but after 1 January 2008, the Plaintiff and the Second Defendant engaged in a telephone conversation with one another in which the Plaintiff and the Second Defendant negotiated in respect of the First Agreement and the Second Defendant told the Plaintiff word to the effect of 'every job you take from me is guaranteed for 2 years'; and
b) On or about 15 January 2008, prior to entry by the Plaintiff into the First Agreement, at the office of Proclean Guaranteed in Osborne Park, the Second Defendant told the Plaintiff words to the effect of 'every job you take from me is guaranteed for 2 years'.
The representation at Paragraph 4(b) was written insofar as, on or about 15 January 2008, at the office of Proclean Guaranteed in Osborne Park, the Second Defendant presented the Plaintiff with Attachment A of the deed dated 15 January 2008 between the Plaintiff and the First Defendant, which contained written representations to the effect that each cleaning contract would generate a particular income for performance of the relevant cleaning work.
The representation at Paragraph 4(c) was implied insofar as:
a) Negotiation in respect of and entry by the Plaintiff into the First Agreement was a transaction which occurred in a commercial setting and this was known to the First and Second Defendants;
b) The nature of the transaction proposed was the assignment of the Cleaning Contracts, i.e. the assignment of choses in action and this was known to the First and Second Defendants;
c) The Plaintiff was to extend valuable consideration for the cleaning contracts and this was known to the First and Second Defendants;
d) In entering into the First Agreement, the Plaintiff committed to working on a full-time basis as an independent contractor for the First Defendant and to service the cleaning clients and this was known to the First and Second Defendants; and
e) Having regard to these circumstances, it is reasonable to infer that the First and Second Defendants implicitly represented to the Plaintiff that the First Defendant, its directors and employees (i.e. the Second and Third Defendants), would refrain from undermining the Plaintiff's performance of the terms of the First Agreement.
Paragraph 4
20. Paragraph 4 is wholly replaced. Objected to.
21. Material facts are pleaded as particulars. For example the representation alleged to be made by the first and second defendants at paragraph 4c) is alleged, in particulars, to be implied. Then very material facts are simply inserted into long and confusing particulars. For example, the plaintiff says in the particulars at the top of page 7, that two defendants knew of the plaintiff's alleged intention to work full time (a material fact) but fails to say how those defendants knew of that fact (required particulars).
22. The representation alleged at paragraph 4c) is not pleaded to be false. It alleges a representation that defendants 'would not undermine, curtail or interfere with or thwart … Plaintiff's performance of the terms of the First Agreement'.
23. The attempted matching allegation at paragraph 16f) that defendants 'interfered and thwarted the Plaintiff's attempts to replace the Plaintiff's role under the cleaning contracts' fails to match the alleged representation.
24. The Minute adds further confusion because this point is referred to in the particulars of paragraph 4, at page 7, sub-paragraph e), as 'refrain from undermining the Plaintiff's performance of the terms of the First Agreement'.
25. Sub-paragraph 16f) is so devoid of particulars as to be impossible to respond to.
26. The allegation appearing in the particulars at page 7, sub-paragraph d) that the defendants knew of the plaintiff's commitment to work full time, should be pleaded as a material fact and should be supported by particulars – how or why did those defendants know of that fact?
6 I think it implicit in the quote which I have earlier cited from the Chief Justice that the process of objection should be confined to instances where there is a genuine detriment experienced by the defendant facing the pleading in the form in which it is cast. I see nothing in the objections which could possibly satisfy such a test. Certainly there are some deficiencies in the pleading and it is not, as I earlier stated, an elegant pleading. Nonetheless in my view it clearly conveys to the reader the propositions which are advanced by the plaintiff and gives the defendant every opportunity to understand those propositions, plead to those propositions, and prepare a defence to them. For that reason I consider the attack on par 4 to be unwarranted and I do not uphold the objections.
7 The next paragraph under attack is par 8 in which the same propositions are advanced in opposition. Those propositions are not accepted for the same reasons as I have explained in regard to par 4.
8 The next paragraph in contention is par 9. That paragraph complains of a discrepancy between par 9 and par 6. Paragraph 6 relates to the parties entering what is described as the second agreement at some point between January and March 2008. That does not square with the proposition in the paragraph in which a representation is referred to as being on our about 1 March 2008 and immediately prior to the plaintiff entering into the second agreement. That is an obvious mistake, it is embarrassing, and it should be corrected. There is also a complaint that par 9 alleges a material fact, namely that the third defendant was aware of the contents of a document described as 'Pro Clean Customer Summary' created 5 March 2008 but does not give details as to how it is alleged that the third defendant was aware of that fact. Given that the pleading is that it was the third defendant which presented the plaintiff with that document, I struggle to understand the point. One would have thought it a normal inference that when a party having a hand in the transactions which are referred to in the statement of claim, presented a summary said to contain details of potential income generation that it would be understand that person would comprehend the nature of the information which was being presented. I see nothing wrong with the pleading in that respect as it is presently constituted.
9 The next paragraph under attack is par 11. The paragraph alleges that there was a third contract in which the terms pleaded were partly written and partly implied. The pleading goes on to say that in so far as the terms were written they were contained in the deed dated 3 June 2008. The pleading goes on to explain the manner in which the remaining terms are said to be implied. The objection is that there is no clear indication as to which terms are expressed and which terms are implied and how so. I do not clearly understand the nature of the objection. There was a written component to the agreement which has been defined and the balance of the terms of that contact were to be implied by the nature of the transaction and other relevant circumstances. I see no substance in the objection and I do not accept the need for any revision to the pleading.
10 The next objection is to an amendment to par 2 in which particulars of the agreement are said to be the first agreement was a written deed dated 15 January 2008 between the plaintiff and the first defendant of which some of the terms were partly implied. The next paragraph then sets out all the terms to the agreement. Although the particulars are unhelpful, perhaps even nonsense, they are completely innocuous and I see no reason to interfere.
11 The next objections are to pars 6 and 7 in relation to the dates which have been referred to in an earlier portion of this decision.
12 The next objection is to par 13 in which it is said in the pleading prior to the entry by the plaintiff and the first defendant into the third agreement the third defendant made those same representations to the plaintiff as described in par 12. Paragraph 12 contains an extensive list of representations regarding the third agreement. I am unable to understand the objection. It is clear to me that the attack on the third defendant only relates to the third agreement.
13 There follows a series of objections to the pleadings as a whole. In my view this is not an opportunity to air these matters. Those issues should have been aired when the strike out application first came before the court. The objections as far as I am concerned should if not entirely, then largely, relate to the portions of the pleadings which have been reinstated in place of those struck out. This was not an opportunity to canvas the whole of the pleading and effectively seek some alternative strike out order. I therefore decline to deal with the matters which are raised.
14 I shall issue this decision and invite the parties to make submissions as to the appropriate orders and costs.
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