Madan v Mineralogy Pty Ltd - [2022] WASC 33

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MADAN -v- MINERALOGY PTY LTD [2022] WASC 33
CORAM:   KENNETH MARTIN J
HEARD:   11 NOVEMBER 2021
DELIVERED          :   7 FEBRUARY 2022
FILE NO/S:   CIV 1292 of 2021
BETWEEN:   HEM SHANKER MADAN
Plaintiff
AND
MINERALOGY PTY LTD
First Defendant
CLIVE FREDERICK PALMER
Second Defendant

Catchwords:

Practice and procedure - Strike out application against statement of claim - Various issues - Failure to plead reasonable causes of action - Lack of clarity in pleading giving rise to legal embarrassment

Legislation:

Companies Code 1981 (WA)
Corporations Act 2001 (Cth)
Limitation Act 2005 (WA)

Result:

Application for leave to amend statement of claim dismissed
Application to strike out statement of claim allowed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M Blandford
First Defendant	:	Mr P Dunning QC & Mr E Robinson
Second Defendant	:	Mr P Dunning QC & Mr E Robinson

Solicitors:

Plaintiff	:	Butcher Paull & Calder
First Defendant	:	Thomas Browning
Second Defendant	:	Alexander Law

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

BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] UKPCHCA 1; (1977) 180 CLR 266
Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337
Gauci v Briffa [2011] WASCA 20
Mann v Paterson [2019] HCA 32; (2019) 267 CLR 560
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340
Otway Developments Pty Ltd v Waller (Unreported, WASC Library 9042, 1991)

Table of Contents

Introduction

Materials

Context

Procedural history

The defendants' challenges to the ReASOC pleading

The ReASOC contract pleas

Key challenges by the defendants on the present strike out application

First issue

Second issue

Third issue

Fourth issue

Fifth issue

Sixth issue

Seventh issue

Further observations (Implied Terms)

General concluding observations on the ReASOC

The way forward

Conclusions

Schedule 1

KENNETH MARTIN J:

Introduction

On these interlocutory applications, I am dealing with aspects of the defendants' amended chamber summons of 29 September 2021 (electronic court document 28) as well as components of the plaintiff's amended chamber summons of 6 October 2021 (electronic court document 32).
The aspect of the defendants' interlocutory application presently to be addressed, is a challenge by the first and second defendants advanced pursuant to Rules of the Supreme Court 1971 (RSC) O 20 r 19, against various paragraphs found within the plaintiff's most recent iteration of his pleaded statement of claim. This is the plaintiff's reamended statement of claim of 12 August 2021 (ReASOC) (electronic court document 17).
The strikeout application is resisted.
Another aspect of the defendants' amended chamber summons, seeking to advance the application by the first defendant for summary judgment pursuant to RSC O 16 r 1 against the plaintiff - is advanced on the basis of limitation of action arguments. But this arena of conflict is consensually agreed by the plaintiff to be stood over to be dealt with later, if necessary.
Correlatively heard along with the live aspects of the defendants' interlocutory application, is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] WASC 33
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the plaintiff, Hem Shanker Madan, brought an action against Mineralogy Pty Ltd and Clive Frederick Palmer, seeking financial compensation for alleged breaches of contract and other causes of action. The defendants challenged the plaintiff's statement of claim, contending that it failed to disclose reasonable causes of action and prejudiced the fair trial of the action. The court dismissed the plaintiff's application for leave to amend his statement of claim and granted the defendants' application to strike out certain paragraphs of the statement of claim. The court found that the plaintiff's equitable fraud and money had and received pleas were conceptually untenable and struck them out. The court also found that the plaintiff's implied terms pleas were unclear and unsustainable. The court held that the plaintiff's statement of claim had multiple deficiencies and that it would be inappropriate to allow the plaintiff to introduce defective pleas in their current form. The court suggested that the plaintiff should start work again from his penultimate statement of claim iteration to address the multiple pleading deficiencies identified in the reasons. The defendants were directed to prepare a minute of orders giving effect to the reasons, to be circulated to the plaintiff's lawyers with a view to conferral as to orders.

Orders