Lilydale Pastoral Company Pty Ltd v Australian & New Zealand Banking Group Ltd

[1990] FCA 331

doT D I iTR 1 E U-r I O,V

JUDGMENT NO. .$%!...'/...%

IN THE FEDERAL COURT OF AUSTRALIA ) )

1	QUEENSLAND DISTRICT REGISTRY	)	NO. QG 35 OF 1990
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GENE- DIVISION

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BETWEEN:

LILYDALE PASTORAL COMPANY PTY LTD

Applicant

AND :

AUSTRALIA AND NEW ZEALAND BANKING

GROUP LIMITED

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	SPENDER J.
DATE OF ORDER:	22 JUNE 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.   Those parts of the statement of claim set out hereunder be struck out pursuant to 0. 11 r.

16 of the Federal Court Rules:

(i) paragraphs 3, 4, 5, 8, 9 and 10;

(ii)	in paragraph 6, the words "in reliance upon the advice of the Defendant";
(iii)	in paragraph 7, the words "Acting upon the

advice of the Defendant".

2. That the applicant pay the respondent's costs

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of and incidental to the motion.

NOTE:  Settlement and entry of orders is dealt with in

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Order 36 of the Federal Court Rules.

12 JUL1990

FEDERAL COURT OF

A U r n U A

PRINCIPAL REQISTRY

IN THE FEDERAL COURT OF AUSTRALIA	)
1
QUEENSLAND DISTRICT REGISTRY	) NO. QG 35 OF 1990
1
GENERAL DIVISION	1

BETWEEN :

LILYDALE PASTORAL COMPANY PTY LTD

Applicant

AND :

AUSTRALIA AND NEW ZEALAND BANKING

GROUP LIMITED

Respondent

SPENDER J.
BRISBANE

22 JUNE 1990

EX TEMPORE REASONS FOR JUDGMENT

This is a notice of motion by the respondent in the principal proceedings to strike out certain paragraphs of the statement of claim under 0.11 r. 16 of the Federal Court Rules.

In relation to pleadings, it is necessary for an

applicant to plead the material facts on which it relies. It

is quite clear that it is not necessary, and in fact is wrong, to plead the legal result of those facts. It is apparent from the submissions made by

M r Cooper on behalf of the applicant in the principal

proceedings that the nature of the claim for misleading and deceptive conduct is reflected in his written submissions, in particular at point 13 of those submissions. It is asserted there that the impugned paragraphs, together with paragraphs

2, 11 and 12, are material facts relied upon to prove the

damage pleaded in paragraph 13 of the statement of claim. The submission is that it is the totality of the conduct which gives rise to the cause of action. The cause of action submitted by Mr. Cooper is that it was:

... misleading and deceptive to give

expert advice to the Applicant to borrow in foreign currency and to give advice for a time about how the Applicant should manage the loan, without having told the Applicant

the outset that the Bank could, as it did, take over the loan at any time and conduct it as the Bank thought fit even if that caused damage to the Applicant. "

In my view, that claimed failure to advise does not appear on a fair reading of the statement of claim as pleaded. I accept that the nature of the dealings between the parties may have a relevance if it is attempted to plead conduct which is misleading and deceptive in accordance with the above submission. In my view, however, the statement of claim as presently framed does not plead such a cause of action.

Further, as the statement of claim presently stands, it seems	to me that paragraphs 3, 4, 5, 8 9 and 10 are irrelevant to
the cause of action which is pleaded. It seems to me that the cause of action pleaded and the relief claimed in paragraph 13 of the statement of claim is that there was an unauthorised placing of a forward selling contract contrary to the wishes of the applicant, and contrary to the terms of the loan agreement which is referred to in paragraph 6.
Further, nothing is said to follow from the reliance by the applicant on the respondent's alleged advice in paragraphs 6 and 7. That reliance may be relevant to what is now submitted to be the thrust of the claim under S. 52 of the Trade Practices Act 1974. However, as I said, this claim is not pleaded in the statement of claim.
Accordingly, I strike out paragraphs 3, 4, 5, 8, 9 and 10. I also strike out the words "in reliance upon the advice of the Defendant" in paragraph 6, and in paragraph 7 the words "Acting upon the advice of the Defendant," or, as it now is, the respondent.
There is a further objection, it seems to me, in relation to the generalised nature of the conduct pleaded in paragraph 10. In particular, and by way of example, paragraph 10(v) asserts repeated conduct, or at least conduct on a number of occasions, by the bank in refusing to reverse unauthorised forward selling contracts. The relief claimed in
borrower identifies as the relief being pursued, is in respect the application, however, and the relief which counsel for the of one unauthorised forward selling contract as pleaded in
paragraphs 11 and 12. To permit paragraph 10(v) to stand would be unnecessarily to proliferate the issues in contention between the parties. It is not only irrelevant but embarrassing to the respondent in the principal proceedings.
I give leave to the applicant in the principal proceedings to file and serve a further amended statement of claim within 21 days.

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I further order that the respondent on the motion should pay the applicant's costs of the motion, to be taxed if	I
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not agreed.	.
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