M L Holdings Pty Ltd v Marrapodi Holdings Pty Ltd

[2001] WADC 258

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   M L HOLDINGS PTY LTD -v- MARRAPODI HOLDINGS PTY LTD & ORS [2001] WADC 258

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   24 NOVEMBER 2000

DELIVERED          :   16 NOVEMBER 2001

FILE NO/S:   CIV 2770 of 1998

BETWEEN:   M L HOLDINGS PTY LTD

Plaintiff

AND

MARRAPODI HOLDINGS PTY LTD
First Defendant

FRANCESCO MARRAPODI
Second Defendant

VIOLA SANTA MARRAPODI
Third Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to strike part of a pleading

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985

Result:

Application successful

Representation:

Counsel:

Plaintiff:     Mr B Ashdown

First Defendant             :     Mr P Smith

Second Defendant         :     Mr P Smith

Third Defendant           :     Mr P Smith

Solicitors:

Plaintiff:     Ilberys

First Defendant             :     Patrick Smith

Second Defendant         :     Patrick Smith

Third Defendant           :     Patrick Smith

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

Nil

Case(s) also cited:

Nil

1. DEPUTY REGISTRAR HARMAN:  By letter dated 12 September 2001 the plaintiff sought to have me deliver a decision and reasons in relation to a hearing of the plaintiff's application to strike out parts of the defendants substituted defence and counterclaim in respect of which submissions were made by the parties on 24 November 2000.  It is evident from the comments which I made on that day that I considered that it would be inappropriate to finally deal with the application as the defendant had foreshadowed an application to dismiss the action and the prospect that the defendant would bring in a fresh pleading.

2. The defendants attack upon the case has now been dismissed.  According to the file the defendant in relatively recent times has filed an affidavit which annexes a proposed substituted defence in the event that the plaintiff was successful in the strike out application. The defendants attitude is not helpful, in my opinion, the defendant ought to either rely upon its present defence or abandon it and seek to file the proposed defence.  Be that as it may I will deal with the application insofar as it relates to the present pleading but on the basis of the concessions made in the defendants written submissions filed 24 November 2000.

3. As a result of the period of time since the hearing in seeking a determination I am now without the benefit of the submissions made by the parties.

4. The issues taken with par 9(l) and par 9(m) are resolved on the defendants submissions.

5. The first part of the defence in issue is par 11 to par 31 inclusive which constitute an alleged defence to the claim.  The defence is expressed to be in terms that the first defendant has applied under the Commercial Tenancy (Retail Shops) Agreements Act 1985 for mediation or determination of matters including "those in dispute in the statement of claim".  The defendant goes on to plead that until that claim is determined it is not possible in this court for the plaintiff to claim that it is entitled to relief. 

6. In my opinion it is for the defendant to isolate those parts of the claim the subject of reference to mediation or determination to enable the reader to determine whether it is the whole or parts and if so, which parts of the claim are the subject of the defendants pleading.  The balance of that part of the pleading, principally par 13 is argumentative.  It also characterises a reference as implied.  The defendant ought to specify which matters are referred implicitly and how it is that the implied reference arises.  It follows that those parts of the defence ought be struck out.

7. The balance of the relevant part of the pleading is affected by the failure to specify those matters in dispute the subject of the reference to mediation or determination in the Commercial Tribunal.  I have already determined that the defendant is expected to specify which matters are not the subject of reference.  If it transpires that some of the matters the subject of reference to the Tribunal are not within the jurisdiction of the Tribunal then it is conceivable at that point that the defendants may wish to amend the pleading in order to embrace those matters. Until a determination is made by the Tribunal in my opinion the defendant should simply plead as to the non-referred matters.

8. Until such a case is pleaded it is difficult to discern whether and to what extent the pleadings in par 15 to par 31 inclusive are engaged by any valid counterclaim.

9. The balance of the plaintiff's objections relate to the sufficiency of the pleas at par 32, par 33 and par 34 to raise a defence of undue influence.  The attack on that part of the pleading derives from an appreciation that reported determinations provide the only datum for disturbing contractual rights.

10. In my opinion it is appropriate to allow for the defendants to bring evidence in support of the relevant allegations of material fact prior to making any determination as to the sufficiency of the defendants case.