Marinkovich v Morkim Pty Ltd
[2001] WASC 46
MARINKOVICH & ANOR -v- MORKIM PTY LTD & ORS [2001] WASC 46
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 46 | |
| Case No: | CIV:2473/2000 | 30 JANUARY 2001 | |
| Coram: | MASTER BREDMEYER | 23/02/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Applications allowed in part | ||
| PDF Version |
| Parties: | WAYNE THOMAS MARINKOVICH FAYE ELIZABETH MARINKOVICH MORKIM PTY LTD (ACN 008 863 223) CHRISTINE PRISCILLA MORRISON KIMBERLEY JOHN TAYLOR MORRISON CABASSI PTY LTD (ACN 079 388 971) |
Catchwords: | Pleading Application to strike out Particulars |
Legislation: | Fair Trading Act, s 10 Trade Practices Act, s 51AA, s 51AC, s 82, s 87 |
Case References: | Commercial Bank of Australia Ltd v Armadio (1983) 151 CLR 447 Perre v Apand Pty Ltd (1999) 198 CLR 180 Pyrenees Shire Council v Day (1998) 192 CLR 330 Attorney General of the Duchy of Lancaster v L & NWR [1892] 3 Ch D 274 Beach Petroleum NL & Anor v Johnson & Ors (1991) 105 ALR 456 Bruce v Odhams Press Ltd [1936] 1 All ER 287 Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees Association of Western Australia (1987) 13 FCR 413 Dalgety Australia Ltd v Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Donoghue v Stevenson [1932] AC 562 Gala v Preston (1991) 172 CLR 243 General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125 Goddard v BHP Iron Ore Ltd, unreported; SCt of WA (Murray J; Library No 950018; 20 January 1995 Hackshaw v Shaw (1984) 155 CLR 614 Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 Hubbuck & Sons v Wilkinson [1899] 1 QB 86 Jaensch v Coffey (1984) 155 CLR 549 Katina Pty Ltd v Westfield Design and Construction Pty Ltd, unreported; SCt of WA (Master Sanderson); Library No 980059; 13 February 1998 Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA (Master Staples); Library No 6141; 25 August 1986 Knowles v Robert [1888] 38 Ch D 263 Mayor of London v Horner (1914) 111 LT 514 Meckiff v Simpson [1968] VR 62 Nagle v Fieldren [1966] 2 QB 633 National Mutual Life Association of Australasia Ltd v Coffey & Partners Pty Ltd & Ors (1992) BCL 74 Niven v Grant [1903] VLR 103 Packard v Transport Trading and Agency Co Ltd (1912) 14 WALR 191 Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 Phillips v Phillips [1878] 4 QBD 127 Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurtsville) Pty Ltd [1971] 1 NSWLR 472 San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 Southern Resources Ltd v Techmonin Australia NL [1990] WAR 72 Stevens v Broadribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Todd v Novotny, unreported; SCt of WA (Master Sanderson); Library No 970029; 7 February 1997 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- FAYE ELIZABETH MARINKOVICH
Plaintiffs
AND
MORKIM PTY LTD (ACN 008 863 223)
First Defendant
CHRISTINE PRISCILLA MORRISON
KIMBERLEY JOHN TAYLOR MORRISON
Second Defendants
CABASSI PTY LTD (ACN 079 388 971)
Third Defendant
Catchwords:
Pleading - Application to strike out - Particulars
Legislation:
Fair Trading Act, s 10
Trade Practices Act, s 51AA, s 51AC, s 82, s 87
(Page 2)
Result:
Applications allowed in part
Representation:
Counsel:
Plaintiffs : Mr K C Staffa
First Defendant : Mr R A Zilkens
Second Defendants : Mr R A Zilkens
Third Defendant : No appearance
Solicitors:
Plaintiffs : Kevin Staffa
First Defendant : Zilkens & Co
Second Defendants : Zilkens & Co
Third Defendant : No appearance
Case(s) referred to in judgment(s):
Commercial Bank of Australia Ltd v Armadio (1983) 151 CLR 447
Perre v Apand Pty Ltd (1999) 198 CLR 180
Pyrenees Shire Council v Day (1998) 192 CLR 330
Case(s) also cited:
Attorney General of the Duchy of Lancaster v L & NWR [1892] 3 Ch D 274
Beach Petroleum NL & Anor v Johnson & Ors (1991) 105 ALR 456
Bruce v Odhams Press Ltd [1936] 1 All ER 287
Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees Association of Western Australia (1987) 13 FCR 413
Dalgety Australia Ltd v Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Donoghue v Stevenson [1932] AC 562
Gala v Preston (1991) 172 CLR 243
General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125
(Page 3)
Goddard v BHP Iron Ore Ltd, unreported; SCt of WA (Murray J; Library No 950018; 20 January 1995
Hackshaw v Shaw (1984) 155 CLR 614
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Hubbuck & Sons v Wilkinson [1899] 1 QB 86
Jaensch v Coffey (1984) 155 CLR 549
Katina Pty Ltd v Westfield Design and Construction Pty Ltd, unreported; SCt of WA (Master Sanderson); Library No 980059; 13 February 1998
Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA (Master Staples); Library No 6141; 25 August 1986
Knowles v Robert [1888] 38 Ch D 263
Mayor of London v Horner (1914) 111 LT 514
Meckiff v Simpson [1968] VR 62
Nagle v Fieldren [1966] 2 QB 633
National Mutual Life Association of Australasia Ltd v Coffey & Partners Pty Ltd & Ors (1992) BCL 74
Niven v Grant [1903] VLR 103
Packard v Transport Trading and Agency Co Ltd (1912) 14 WALR 191
Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405
Phillips v Phillips [1878] 4 QBD 127
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurtsville) Pty Ltd [1971] 1 NSWLR 472
San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340
Southern Resources Ltd v Techmonin Australia NL [1990] WAR 72
Stevens v Broadribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Todd v Novotny, unreported; SCt of WA (Master Sanderson); Library No 970029; 7 February 1997
(Page 4)
1 MASTER BREDMEYER: I have before me two applications by the first and second defendants, whom I will refer to as "the defendants". The first is an application dated 2 November 2000 to strike out parts of the plaintiffs' statement of claim. In an attempt to meet some of the objections the plaintiffs have drafted an amended statement of claim dated 27 November 2000, which I will refer to as "the statement of claim". The second application is to obtain particulars of that statement of claim as set out in a request dated 30 November 2000. I will deal first with the defendants' application to strike out parts of the statement of claim.
2 Paragraph 16 pleads three warranties by Morkim Pty Ltd ("Morkim") as an implied term of the purchase contract. The objection is that it is not pleaded later that this implied term was breached. I consider that is a good objection and could be cured by a plea of breach (possibly a new par 22A) stating that the implied term was breached and spelling out, perhaps, three breaches to agree with the three warranties. I will strike out par 16 with leave to replead.
3 Paragraphs 23 and 24 are said to be objectionable in that they contain evidence rather than material facts. They plead the defendants' knowledge of certain matters, but the withholding of that knowledge is not said to be an element of any cause of action. I consider there is some merit in that objection. If the pleader intends, by par 23, to plead misleading and deceptive conduct by silence, he needs to plead that the defendants failed to disclose those matters to the plaintiffs when the circumstances gave rise to an obligation to disclose those matters: Miller's Annotated Trade Practices Act (1999) 1.52.50. Then the particulars given could be designated particulars of knowledge. Alternatively, the particulars themselves are useful without the opening words of par 23. They are useful as further particulars of the falsity of the three representations given in par 22 which are particularised at (a) and (b) of par 22. In other words, particulars (a) and (b) of par 23 can be regarded as further particulars in support of particulars (a) and (b) of par 22. I will strike out par 23 with leave to replead. I will strike out par 24 as consequential.
4 Paragraph 26 pleads "unconscionable conduct within the meaning of the unwritten law of Western Australia and thereby breached section 51AA of the TPA". The objection here is that more is needed in this plea and I agree with that. It is not necessary to mention any particular case, such as Commercial Bank of Australia Ltd v Armadio (1983) 151 CLR 447, but it is necessary to plead some material facts as to why the defendants' conduct was unconscionable. It is necessary to plead that the plaintiffs were in a position of serious disadvantage with the defendants.
(Page 5)
- A list of matters, which is not exhaustive, is set out in that case at 462 which place a person at serious disadvantage with another. These include sickness, age, infirmity of body and mind, drunkenness, illiteracy, lack of education, lack of assistance or explanation where assistance or explanation is necessary. The latter phrase may be apt. From what I understand of the plaintiffs' case, they claim to be under a serious disadvantage vis à vis the defendants, because they were not given an explanation about the limited ground water available on the property, the need to obtain a licence before that water could be accessed, and that ground water was not available in suitable quantities to make it suitable for commercial market garden operation. I will strike out par 26 with leave to replead.
5 A second objection to par 26 is that it is said that damages cannot be obtained under s 82 for breach of s 51AA. That is because s 82, in its terms, provides damages for contraventions of provisions in Parts IV, IVB, V or s 51AC of the Trade Practices Act, and s 51AA is found in Part IVA. The point is a good one but is not ultimately a winning one because a contravention of s 51AA can result in damages under s 87(2)(d) of the Act.
6 Paragraph 28 pleads:
"28. Further, and in the alternative, in the premises, Morkim and the second defendants owed the plaintiffs a duty of care to bring to their attention:
(a) that restrictions did or might apply on the amount of ground water that could be pumped on Lot 203;
(b) Lot 203 may be unsuitable for a commercial market garden due to restrictions on groundwater use; and
(c) the ATP,
because it was foreseeable that if the plaintiffs purchased Lot 203 to use as a commercial market garden and expended funds to establish improvements on Lot 203, for that purpose, they would suffer loss and damage if there was not sufficient water available for that purpose due to lack of groundwater or due to restrictions on the use of groundwater."
(Page 6)
7 This plea is said to be defective because it does not spell out the various necessary elements of the tort of negligence. In particular, it does not spell out the proximity to explain why these vendors should be liable in negligence for misrepresentations to their purchaser. I disagree with that objection. As I pointed out to counsel in the course of argument, the tort of negligence applies in various factual situations and the court has extended it from time to time, in an incremental way, to new situations. In a well-known category, such as negligence on the highway, it is not necessary to plead out the various elements of the cause of action because it is well established in the cases, that a driver of a vehicle owes a duty of care to other road users. However, if the plea of negligence was in a less common situation and getting towards the boundaries of the law of negligence, a more comprehensive plea would be required. Examples of that would be in the situation of negligence for economic loss covered in Perre v Apand Pty Ltd (1999) 198 CLR 180 and for failure to exercise a statutory power in Pyrenees Shire Council v Day (1998) 192 CLR 330. The context of this present plea of misleading information given by a vendor to a purchaser about the subject matter of the sale is a well-known category and I consider the plea is adequate.
8 I turn now to the defendants' application for further and better particulars of the statement of claim. I refer to the first and second defendant's request dated 30 November 2000.
9 I reject request 1 which relates to par 2 of the statement of claim. As worded, the request only relates to what is meant by "all material times" in par 2, and that is clear enough from the pleading. It means at all times anything is alleged against the defendants. The defendants sought to amend their request to cover a different matter, namely the plea that the second defendants, inter alia, "acted on their own behalf". I decline to allow that amendment.
10 I allow request 2 in an amended form. The amendment was reached in the course of argument, namely: "State details of the advertisement referred to in par 6.1 of the Statement of Claim."
11 Request 3 relates to pars 5, 6 and 7 of the statement of claim. It seeks particulars of the instructions given by the second defendants, Mr and Mrs Morrison, to their company Morkim. I decline to grant that. I consider the defendants will not be embarrassed by that lack. Clearly, whether both or either of them gave instructions to their company on various matters is entirely within their own knowledge and they are at a great advantage in that, vis-à-vis, the plaintiffs. I do not consider the
(Page 7)
- defendants will be embarrassed at trial for this lack of particulars. The plaintiffs are unlikely to be able to give any more than to say: "Particulars will be given after discovery and interrogatories".
12 Request 4 relates to par 12 of the statement of claim and relates to large coloured road signs erected adjacent to the lots for sale, advising that the land had abundant fresh underground water and could be used for horticulture. I will allow this request. Unless the plaintiffs have any more precise knowledge, I consider it could be answered along these lines: the second defendants lived in the area (if that be a fact) and the plaintiffs will ask the court to infer that they saw the signs, approved of them, and instructed their real estate agent, the third defendant, to erect the signs.
13 I decline request 5, which relates to par 13 of the statement of claim. That paragraph pleads implied representations. It is obvious from earlier pleas that the plaintiffs will ask the court to infer those representations from the brochure and the road signs and to infer that the second defendants knew of them and approved them.
14 Request 6 relates to par 23 of the statement of claim. I decline this request. I have struck out par 23 and it will be repleaded. As I said in relation to request 3, what instructions Mr or Mrs Morrison gave to their company is well known to them, and probably not known to the plaintiffs. At trial the plaintiffs will ask the court to draw inferences that they knew what their company was doing and instructed its real estate agent in the conduct of the sale. The defendants will not be embarrassed by the lack of particulars.
15 I allow requests 7 and 8 relating to par 26(b) and par 27(b), that the second defendants were knowingly concerned in the misleading and deceptive conduct perpetrated by their company, Morkim. Again, as outlined above, if the plaintiffs are going to argue at trial that the Judge should draw that inference from certain stated matters, then they may state that as a proper answer to this particular.
16 I reject request 9 which seeks particulars of the allegation that the second defendants were engaged in trade and commerce, as alleged in par 20 of the statement of claim. I reject the request as unnecessary. The land was being sold by Morkim as a commercial venture. There were at least 31 lots for sale and clearly it was as a commercial venture. It was not a sale of the family home or the family farm. I realise that the question particularly relates to the second defendants. As I understand the plaintiffs' argument, it is that they were the directors of Morkim and, as
(Page 8)
- such, must have instructed their company to do the subdivision and sell the lots. As previously stated, whether they, or each of them, did or did not, is within their knowledge. The plaintiffs will rely on inferences. The defendants will not be embarrassed by a lack of particulars.
17 Request 10 relates to par 25 of the statement of claim. It pleads that by making the water representation and the market garden representation, Morkim and the second defendants engaged in misleading or deceptive conduct contrary to s 52 of the TPA and s 10 of the FTA. I regard that as a wrap-up plea. The material facts supporting the elements of the cause of action are pleaded elsewhere and no particulars of the second defendants' role in that need be given in reference to par 25.
18 Request 11 relates to par 28 of the pleading which is the plea of negligence. Again, the request is directed to the second defendants, as to why they owed a duty of care to advise the plaintiff purchasers about the water restrictions etc. Again, this is a wrap-up plea, and, except insofar as I have required the plaintiffs to say something about the inferences they will ask the court to draw at trial, I do not consider any further particulars are necessary.
19 In summary, I allow requests 2 as amended, 4, 7 and 8.
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