Mantel v Waterproofing WA Pty Ltd - [2011] WASC 77

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MANTEL -v- WATERPROOFING WA PTY LTD [2011] WASC 77

CORAM: ALLANSON J

HEARD: ON THE PAPERS

DELIVERED : 25 MARCH 2011

FILE NO/S: CIV 1815 of 2008

BETWEEN: BARRY JAMES MANTEL
MICHELLE LEANNE MANTEL
Plaintiffs
AND
WATERPROOFING WA PTY LTD
First Defendant
DOMINIC WILLIAM WHALEN
Second Defendant
LERIC PTY LTD
Third Defendant
MICHAEL RICHARD GOSS
MARY-LENA GOSS
Fourth Defendants

Catchwords:

Practice and procedure - Pleadings - Application to strike out part of statement of claim - Pleading complicity in breach of trust - Pleading of dishonesty - Turns on own facts

Legislation:

Nil

Result:

Statement of claim struck out in part

Category: B

Representation:

Counsel:

Plaintiffs:     No appearance
First Defendant            :     No appearance
Second Defendant        :     No appearance
Third Defendant           :     No appearance
Fourth Defendants       :     No appearance

Solicitors:

Plaintiffs:     Metaxas & Hager
First Defendant            :     Earnshaw & Associates
Second Defendant        :     Earnshaw & Associates
Third Defendant           :     D'Angelo Legal
Fourth Defendants       :     D'Angelo Legal

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

Arthur Young v Tieco International (1995) 182 LSJS 367
Banque Commerciale SA, en liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Barnes v Addy (1874) LR 9 Ch App 244
Boase v Axis International Management Pty Ltd [2009] WASC 331
Erlistoun Gold Pty Ltd (Formerly Erlistoun Gold NL) v Worth Investments Pty Ltd [1999] WASCA 3
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336
H 1976 Nominees Pty Ltd v Galli [1979] FCA 74; (1979) 30 ALR 181
MacMahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271
Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167
Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905
Wainter Pty Ltd v Freehills (a firm) [2008] FCA 562

ALLANSON J: In 2008, Barry James Mantel and Michelle Leanne Mantel commenced proceedings against Waterproofing WA Pty Ltd (first defendant), Dominic William Whalen (second defendant), Leric Pty Ltd (third defendant), and Michael Richard Goss and Mary‑Lena Goss (fourth defendants). The plaintiffs claim relief for breach of trust by the first defendant, and plead that each of the other defendants was in some way liable as an accessory to that breach.
On 18 October 2010, on an application by the third and fourth defendants, I struck out pars 13, 14 and 15 of the amended statement of claim. On 26 November 2010, the plaintiffs filed a re‑amended statement of claim. The second defendant has applied for orders that pars 13, 14, 15, 22, 23 and 24 of the re‑amended statement of claim be struck out. The third and fourth defendants also seek orders that pars 13, 14, 15 and 16 ‑ 24 should be struck out.
It is convenient to first outline the case pleaded…

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: [2011] WASC 77
Decision Date: 25 MARCH 2011

CaseChat Overview and Summary

The case of Mantel v Waterproofing WA Pty Ltd was heard in the Supreme Court of Western Australia. The plaintiff, Mantel, sought damages for breach of trust against Waterproofing WA, alleging that the defendant company had engaged in dishonest conduct in relation to the management of a trust fund. The defendant filed an application to strike out parts of the plaintiff's statement of claim, arguing that certain allegations amounted to pleadings of dishonesty which were impermissible. The court was required to determine whether the allegations in the statement of claim were sufficient and whether the plaintiff's claims were justiciable.

The primary legal issue before the court was whether the allegations of dishonesty in the plaintiff's statement of claim were permissible. The court considered the principles governing pleadings of dishonesty, including the need for such allegations to be based on specific facts and not mere conclusions. The court also examined whether the allegations of complicity in breach of trust were adequately pleaded. The defendant argued that the plaintiff's claims turned on their own facts and that the pleadings were deficient.

The court found that the plaintiff's allegations of dishonesty were not based on specific facts but were rather conclusions. The court held that pleadings of dishonesty required more than mere conclusions and had to be substantiated by specific facts. Consequently, the court struck out the allegations of dishonesty from the plaintiff's statement of claim. However, the court allowed the allegations of complicity in breach of trust to stand, finding that they were adequately pleaded and did not require the same level of specificity as allegations of dishonesty. The court dismissed the defendant's application to strike out the remaining parts of the statement of claim.

The final orders of the court were that the allegations of dishonesty in the plaintiff's statement of claim were struck out, while the allegations of complicity in breach of trust were allowed to proceed. The court provided the plaintiff with an opportunity to amend the statement of claim to remove the struck-out allegations and to provide specific facts to support any remaining allegations of dishonesty.

Orders